Lord Kilmuir: A Vignette 9781782256267, 9781782256236, 9781782256250

Table of contents :
Cover
Half-title
Title
Copyright
Dedication
Preface
Contents
I. Introduction
II. Early Career
III. Conservatism
IV. Domestic Politics
V. Suez
VI. Judicial Independence
VII. Kilmuir as Judge
VIII. End of an Era
IX. Europe
X. Concluding Reflections
Index

Citation preview

Duxbury

Lord Kilmuir A Vignette

Lord Kilmuir A Vignette Neil Duxbury

LORD KILMUIR: A VIGNETTE This short book examines the career and achievements of Lord Kilmuir (David Maxwell Fyfe), a British politician and former Lord Chancellor who is mainly remembered for some poor and unpopular decisions but who nevertheless made a considerable mark on twentieth-century legal development. After the Second World War, Kilmuir not only excelled as a fellow prosecutor with Justice Robert Jackson at Nuremberg but also played a significant role in the effort to restore European unity, particularly through his involvement in the drafting of the European Convention on Human Rights. Drawing on archival and other primary sources, this book considers Kilmuir’s initiatives both at home and in Europe, and concludes by marking out his achievements as a pro-European Conservative who not only favoured the right of individual petition to a supranational, Convention-enforcing court but who also favoured Parliament legislating to replicate Convention norms in domestic law.

Lord Kilmuir: A Vignette

Neil Duxbury

OXFORD AND PORTLAND, OREGON 2015

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Neil Duxbury 2015 Neil Duxbury has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-78225-623-6 ISBN (ePDF): 978-1-78225-625-0

For Mike Redmayne

Preface Over the past few years, I have been writing about judges. Two essays have appeared so far—on Lords Radcliffe and Wright1—and my next plan was to write a book about Lord Reid. But somehow the work on Reid got displaced by this short study of Lord Kilmuir (David Maxwell Fyfe). Reid and Kilmuir were both Scots who came south, as well as lawyers who served as Conservative Members of Parliament. But there the similarities more or less end. Reid is generally considered to be one of the greatest British judges of the twentieth century. Kilmuir certainly is not. In relation to domestic law and politics he is mainly remembered—in so far as he is remembered at all—for some questionable and sometimes unpopular decisions. Yet in the European context his legacy is more impressive and significant: he excelled as a prosecutor at Nuremberg and was one of the principal architects of the European Convention on Human Rights—and was responsible for ensuring that some of the proposals for what the Convention should contain were unsuccessful. It would be impossible to do what I have tried to do here—provide a dispassionate and nuanced account of the most significant points in a career—without being critical, sometimes very critical, of some of Kilmuir’s decisions and accomplishments. But if his record had invited an entirely negative response, I would have seen little if any point in offering a detailed assessment of the man. For the reasons I set out in chapter one, he seemed to me to be worth the effort. 1 ‘Lord Radcliffe Out of Time’ (2010) 69 Cambridge Law Journal 41; ‘Lord Wright and Innovative Traditionalism’ (2009) 59 University of Toronto Law Journal 265.

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For assistance obtaining access to unpublished sources relevant to this project I owe thanks to the staff at the Special Collections Reading Room, the Bodleian Library, Oxford, the Historical Archives of the European Union, Florence, the National Archives, Kew, the National Library of Wales, Aberystwyth, and, especially, the Churchill Archives Centre, Cambridge, where Kilmuir’s papers are kept. I am grateful to Mrs Fiona Hooper, Head Librarian at George Watson’s College, Edinburgh, for helping me to track down materials relating to Maxwell Fyfe’s schooldays, and to Tom Blackmore, Conor Gearty, Jeremy Horder, Nicola Lacey, Michael Lobban, Martin Loughlin, Linda Mulcahy, Kent Olson, Tom Poole, Mike Redmayne, Jack Schlegel, Grégoire Webber and Ted White for helpful comments on a first draft of the book. I am also indebted to the publishers for obtaining two very perceptive and carefully written reports on the first draft, both of which proved immensely valuable when I came to produce the final manuscript. So far as is possible, I have referred to Kilmuir as Maxwell Fyfe when considering his life and career before 19 October 1954 (when he was appointed as Lord Chancellor) and as Kilmuir when dealing with matters pertaining to him after that date. I use ‘Maxwell Fyfe’ (his usual preference) rather than ‘Maxwell-Fyfe’. During his years as Kilmuir I usually refer to him as plain old Lord (rather than Viscount or, as he was to become in 1962, the Earl of) Kilmuir. December 2014

Contents Preface ............................................................................ vii I. Introduction.............................................................1 II. Early Career .............................................................9 III. Conservatism .........................................................18 IV. Domestic Politics...................................................27 V. Suez .......................................................................43 VI. Judicial Independence ..........................................63 VII. Kilmuir as Judge ....................................................77 VIII. End of an Era .........................................................91 IX. Europe..................................................................100 X. Concluding Reflections .......................................123 Index ..............................................................................131

I Introduction David Maxwell Fyfe—also known as Viscount Kilmuir, Lord High Chancellor of Great Britain from 1954 to 1962—is a name unlikely to stir strong feelings among students of the British legal scene. Blink, and his judicial work is missed: it amounts to his participation in just 25 cases over seven years.1 None of his contributions to those cases is remembered—apart from his involvement in a decision concerning criminal intent, in which he is commonly thought to have botched the law—and there is no stellar career at the Bar preceding his time as a judge. Indeed, to refer to him as a judge seems forced, for adjudication neither occupied nor interested him much. Though his published memoirs detail his exploits from his school days to the last few years of his life, not once does he mention any of the legal decisions in which he participated. Considered alongside other law lords involved in some of those decisions—especially Radcliffe, Reid, Denning and Devlin—he is a judicial bit-part player whose contribution to the development of the common law was minimal at best.

1 Plus one short practice note (reported at [1955] 1 WLR 557). Five of the 25 cases were Privy Council decisions in which he did not deliver the opinion (Ward v IRC [1956] AC 391; Acme Credit Services v Gale [1958] 1 WLR 678; A-G for Australia v R [1957] AC 288; Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd [1959] AC 589; Australian Mutual Provident Society v IRC [1962] AC 135).

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Yet he is one of the more noteworthy figures of twentieth-century British legal history. For eight years, Kilmuir—being of the era when the Lord Chancellor both sat as a member of the Appellate Committee of the House of Lords and had responsibility for the administration of the court system2—was the most powerful legal official in the land. While his legal accomplishments no doubt played a part in getting him to this position, he would have been the first to admit that there were, among his lawyer contemporaries, more notable talents whose opinions the political and legal establishment would most likely have held in higher regard. But Kilmuir combined qualities which suited him to his post. He was adept at domesticating disputes and getting divergent parties to compromise, loyal to colleagues, courteous to his adversaries, hard-working, mild-mannered, calm under stress, an indefatigable political networker, and he was willing to make, and take responsibility for, some tough legal and political decisions. His assessments of legal matters were not always the ablest. But he could be trusted to form clear opinions and—though this would not always prove to be a virtue—to stick to them. He had a taste for the pomp and finery of high office, but he took his parliamentary duties seriously and readily committed himself to the sorts of political scullery work that others in his position might have dodged or considered infra dig. And while it is difficult not to suspect (as some of his contemporaries

2 The Lord Chancellor’s role as a judge and as head of the judiciary came to an end in April 2006: Constitutional Reform Act 2005, pt 2. The judiciary is now headed by the Lord Chief Justice of England and Wales. The Lord Chancellor, as a member of the government, is today primarily responsible for court administration and the judicial infrastructure.

INTRODUCTION

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certainly did)3 that his political statements sometimes came from his having an eye on the long game, it would be wholly unfair to cast him as an insincere strategist who lacked the courage of his convictions. He made it to the top of the legal profession primarily because he was dependable and extremely diligent. But it would be short-sighted to assume that these qualities marked him out entirely. If Kilmuir, as Lord Chancellor, had preferred to hear more cases, he presumably, as head of the judiciary, could have brought this preference to fruition. But when one steps back and considers his achievements in the round, it seems obvious that he should have been so little engaged in judicial decision-making: for he was, first and foremost, a politician. In his memoirs, pointedly titled Political Adventure, he recounts being called to the Bar in 1922 and becoming a successful barrister on the Northern Circuit (primarily in Liverpool and Manchester), eventually taking silk in 1934.4 His taking silk was no mean achievement: he was reputedly, at age 33, Britain’s youngest King’s Counsel in over 250 years.5 But a greater sense of achievement came for him in the following year, when

3

In 1958, for example, Brendan Bracken reportedly dismissed him as a ‘mediocre’ barrister whose ‘rise to legal eminence may be altogether ascribed to his eagerness to say “yes” to a succession of Prime Ministers’. CE Lysaght, Brendan Bracken (London, Allen Lane, 1979) 327. (It was on Bracken’s advice, ironically, that Churchill appointed Maxwell Fyfe as Solicitor General in 1942: see RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 165.) 4 See Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 25–40. 5 See A Eisenstaedt, ‘Sir David Maxwell Fyfe’, Life Magazine 14 Jan 1952, p 96; anon, ‘Obituary: Lord Kilmuir’, The Guardian 28 Jan 1967, p 11. (The source of this information was most likely Kilmuir himself.) The barrister and crime novelist, Edward Grierson, recounts a

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he was elected as the Member of Parliament for Liverpool West Derby: [t]o get [to the House of Commons] had been the dearest ambition of my life, greater even than that of becoming a Silk, and I was not disappointed. To enter the … Commons is … to enter … a new world, complex, hazardous, inconstant, demanding, and perpetually fascinating. This pride and pleasure never faded throughout the twenty years I sat.6

Talented barristers become judges, and—as we will see in due course—Kilmuir maintained that the best judges have no inhibitions about developing the law. But his own law-making ambitions lay outside the courtroom: he wanted to be not a judge contributing to the refinement of the common law but rather a member of the government of the day, securing changes to the law through his participation in the political process.7 This short study examines Kilmuir’s career as a lawyerstatesman. Chapter two provides a brief account of his life up to the end of the Second World War, after which the discussion moves to his conservatism and his somewhat mixed record as Home Secretary (chapters three and four) and then on to his decidedly inauspicious role in the Suez crisis (chapter five). Chapter six considers his rhyme which was apparently coined on the Northern Circuit in the late-1930s: The nearest thing to death in life Is David Patrick Maxwell Fyfe, Though underneath that gloomy shell He does himself extremely well E Grierson, Confessions of a Country Magistrate (London, Gollancz, 1972) 35. 6

Lord Kilmuir, Political Adventure (n 4) 42–43. See D Maxwell Fyfe, ‘The Lawyer-Statesman: Annual Dinner Address’ (1954) 40 American Bar Association Journal 939, 1012 (2 parts) at 939–40. 7

INTRODUCTION

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own minor, and since abrogated, contribution to judicial convention—his stipulation that judges should not risk compromising the perceived impartiality of the courts by putting across their own legal opinions in the media— and chapter seven examines his meagre judicial output. Chapter eight recounts the rather downbeat conclusion to his career. None of this immediately evokes the image of a major legal figure. Yet Kilmuir warrants attention both for what he achieved and what he represents. Chapter nine returns us to his career at the end of the Second World War. This part of his story certainly repays analysis, for this is the period in which he served as a prosecutor at the Nuremburg trials, became involved in the post-War effort to establish European unity and, most significantly of all, was a key participant in the drafting of the European Convention on Human Rights (ECHR). But one could, of course, tell this story without taking account of Kilmuir’s entire career. So, what reasons are there for considering his case in the round? There are essentially two. The first is that Kilmuir’s story is a useful prism through which to see legal change, which often comes about in unexpected ways and can be traced to unexpected sources. His career serves as an interesting, though by no means unique, illustration of how the humdrum and the misjudgements of professional life—the steady drip of committee work, the perspiration without inspiration, the wrong legal turns—can be as significant a part of legal history as the inspired reformulations of common law doctrine, the indefatigable campaigns which spur major legislative change, and similar heroic initiatives. The fact that a past action barely registers or is remembered with indifference or hostility today, and may have been received similarly at the time, does not mean that it cannot have influenced or determined some

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outcome of historical significance. It would be a skewed account of Kilmuir’s legacy which focused only on his lauded contributions to the life of the law. The second reason is that he exhibited a rather complicated array of legal instincts which defy easy characterization. In politics, he was a Conservative, and estimations of his contributions to the law—even his own estimations—occasionally apply the same label. Yet as a lawyer he was something of a puzzle. Sometimes he espoused the sentiments of a declaratory theorist, while at others he seemed more sympathetic to the tenor of American legal realism than almost any other mid-twentieth century British lawyer. No set of legal arrangements could entice from him the praise that he—a Scot—reserved for the English common law. But, to reiterate a point intimated already, he showed no interest in contributing to judge-made law (though he could seem almost obsessive about securing change through legislation).8 The independence of the judiciary meant everything to him, apart from when political difficulties could not be resolved without him compromising it. His views on homosexuality, though not unusual to his era, do not square easily with his commitment to human rights norms. The attention to detail for which he was renowned at Nuremberg is not quite so evident in his handling of the Suez intervention. Even his name is unsettled. Some twentieth-century Lord Chancellors—Haldane, Birkenhead, Jowitt and Simonds stand out—sought to uphold the separation of powers idea by insisting that

8

‘[As Lord Chancellor] I was constantly sending subjects on which the law had been criticized to be examined by the Law Reform Committee, and I aimed at getting at least one Law Reform Bill … dealt with every year’. Political Adventure (n 4) 302.

INTRODUCTION

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only Parliament makes law and that the courts are obliged to give effect to the plain meaning of the statutory text.9 Kilmuir likewise purported to accept Parliament’s sovereignty as a given; and he was in no doubt that judges, when interpreting statutes, should accord the language that Parliament enacted the meaning it plainly yields. Yet, as a Tory Strasbourger, he was willing to see Parliament risk sacrificing some of its sovereignty by legislating both to bring European Convention rights into domestic

9

See eg Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, 113 per Viscount Haldane (Lord Chancellor 1912–15) (‘I do not propose to speculate on what the motive of Parliament was. The topic is one on which judges cannot profitably or properly enter. Their province is the very different one of construing the language in which the Legislature has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide. In endeavouring to place the proper interpretation on the sections of the statute before this House … I think that the only safe course is to read the language of the statute in what seems to be its natural sense’); Sutters v Briggs [1922] 1 AC 1, 8 per Viscount Birkenhead (LC 1918–22) (‘Where, as here, the legal issues are not open to serious doubt our duty is to express a decision and leave the remedy (if one be resolved upon) to others’); Viscount Jowitt (LC 1945–51), commentary on WK Fullagar, ‘Liability for Representations at Common Law’ (1951) 25 Australian Law Journal 278, 296 (‘[P]lease do not get yourself into the frame of mind of entrusting to the judges the working out of a whole new set of principles…. Leave that to the legislature, and leave us to confine ourselves to trying to find out what the law is’); Magor & St Mellons RDC v Newport Corp [1952] AC 189, 191 per Lord Simonds (LC 1951–56) (‘What the legislature has not written, the court must write. This proposition … cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act’).

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law and to enable a municipal court to declare whether a national statute is compatible with those rights when a citizen alleges that the statute contravenes them.10 And while he recognized the plain meaning approach to statutory interpretation to be the default position of the courts, and insisted that judges must never rewrite a statute to make it mean what they want it to mean, he considered the judiciary perfectly entitled to place strained interpretations on statutory language so as to ensure that the legislature’s enactments move with the times. He was no unalloyed progressive, but nor was he a predictable ally of those who supported the status quo. He provides, in short, an object lesson in why it is always best to think very carefully before pinning labels on people.

10

As we will see in ch 9, furthermore, he did not believe—contrary to what some Eurosceptics have maintained—that the United Kingdom’s national sovereignty would necessarily be forfeited as a consequence of its signing the Treaty of Rome.

II Early Career Sir Walter Scott, William Thomson Fyfe recounts, ‘started life with the idea of making his career in the law’ before becoming ‘a decided Tory partisan’.1 For Fyfe’s youngest son, David Patrick Maxwell Fyfe, political conviction preceded legal ambition. Maxwell Fyfe was born in Edinburgh in 1900—his father, he maintained, ‘had a fatal inability to earn money’ and so the family was ‘always poor’2—and he was schooled in the city at George Watson’s College from 1907 to 1917. Though he recalled home as ‘a bastion of Disraelian Conservatism’, and Edinburgh of his formative years as the scene of Unionist struggles,3 his school writing—what survives of it— depicts a boy more interested in literature and the outdoors than in politics.4 His becoming attracted to politics was 1 WT Fyfe, Edinburgh under Sir Walter Scott (Edinburgh, Constable, 1906) 108, 195. Fyfe was a headmaster in Aberdeen until 1892, whereupon he became a schools inspector in the Highlands and Islands. Besides the work on Scott, he also wrote books about rhetoric, Robert Burns, William Wallace, the last Jacobite Rebellion, the Klondike Gold Rush and the teaching of Latin. 2 Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 3. For Maxwell Fyfe’s early years through the eyes of surviving family members (principally his grandson, Tom Blackmore), see www.kilmuirpapers.org/#/earlylife/4581296514. 3 Lord Kilmuir, Political Adventure (n 2) 5. 4 See eg D Maxwell Fyfe, ‘The Wigtown Lumber Camp’ (1916) 13 The Watsonian 41–42; ‘The Literary Club’ (1916) 13 The Watsonian

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a consequence of going up to Balliol College, Oxford, in the autumn of 1917. Not that his tutors appear to have played any significant role in fostering this attraction. Arthur Pickard-Cambridge, his first tutor, had ‘a slightly snobbish outlook, especially towards those who had been to schools in Scotland’.5 While Alexander Lindsay, his next tutor, was a Scot, he was the political opposite of Maxwell Fyfe: ‘the first confessed Socialist to head a college in Oxford’, Lindsay was apparently ‘regarded as a dangerous revolutionary by many of his colleagues’6 (his support for the General Strike of 1926 could only have fanned the flames),7 though Maxwell Fyfe detected only ‘the grey pessimism of a Socialist don’.8 Maxwell Fyfe’s undistinguished academic performance, culminating in a Third in Greats (classics), had much to do with the fact that he forsook his studies in favour of attending the Union debating society and— possibly his favourite pastime—befriending other undergraduates who were connecting with their Conservative instincts.9 In the summer of 1919, he helped establish an Oxford branch of the Conservatives’ premier watering hole, the Carlton Club, and in the autumn he joined others

46–47. During 1916–17, Maxwell Fyfe was Secretary of the school’s Literary and Debating Society (he was made an honorary lifetime member of the Society in 1957): George Watson’s College Literary and Debating Club minutes (1956–57), 78th session, minute 16; also anon, ‘The Qualities of Burns’, The Scotsman 28 Jan 1957, p 4. 5

Kilmuir, Political Adventure (n 2) 13. Given how uncharacteristic it was for Maxwell Fyfe to comment negatively on others, one can only wonder how gargantuan a snob Pickard-Cambridge must have been. 6 D Healey, The Time of My Life (London, Michael Joseph, 1989) 29. 7 See S Collini, Absent Minds: Intellectuals in Britain (Oxford, Oxford University Press, 2006) 461. 8 Kilmuir, Political Adventure (n 2) 18. 9 See ibid 15–16.

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in founding The Oxford Review, a journal published fortnightly under the Club’s auspices and dedicated, according to its Notice, to ‘express[ing] the views of all sections of the Tory party’.10 While he would regret that he had not studied harder at Balliol,11 he was also candid about his lack of intellectual ability: ‘I found in … discussion with more exact minds than my own that there were many facets of many problems of which I had not dreamt’.12 He was not one of those lawyers who might just as easily have been an eminent academic. Oxford was followed by the Bar. To pay his way through pupillage, Maxwell Fyfe worked for the British Commonwealth Union (BCU), which was campaigning on behalf of the Federation of British Industries for protective tariffs and restrictions on imports. In 1922, the BCU seconded him to the Conservative Central Office so that he could help draft speeches and parliamentary questions in the run-up to the November general election.13 He was on the political ladder. But his legal career was also beginning to take shape. He was called to the Bar in June, and the following January he joined the Northern Circuit. It seems that he had a plan: to succeed as a barrister in his

10

The full title of the journal was The Oxford Review: A Political, Social, and Literary Journal for Undergraduates. Maxwell Fyfe was involved in editing the journal during its first three months (October to December 1919) and made his last contribution to it in February 1920. The journal was defunct within three years of its inauguration—primarily, it seems, because nobody was willing to invest much money in it: see C Petrie, Chapters of Life (London, Eyre & Spottiswoode, 1950) 84–85. 11 See Kilmuir, Political Adventure (n 2) 16. The College still saw fit to make him an Honorary Fellow in 1954. 12 ibid 13. 13 ibid 19–20.

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thirties and then become a government minister in his forties.14 Pursuing the plan meant developing a legal and a political profile—in effect, doing two jobs at once. By the time he was thirty-five he was running his own successful chambers and serving as a Member of Parliament.15 A schedule which would have been the ruin of many people—in the Manchester and Liverpool courts during the day, at Westminster by night, performing constituency duties most weekends16—awakened Maxwell Fyfe to what were possibly his greatest strengths: a capacity for managing his time and his workload efficiently and the ability not to succumb to exasperation when faced with 14 When Kilmuir was relieved of the Lord Chancellorship in 1962, Lord Rea recalled how they had found themselves ‘working … in a provincial city [sc, Liverpool] which was strange to both of us…. I remember that he revealed to me some of the hopes he had for his future…. He told me … that if things went well he would hope to take silk in his early thirties[,] … to be a Minister of the Crown in his early forties [a]nd[,] if fortune should favour him, to be top of the legal or political profession, whichever it was, in his early fifties’. HL Deb 17 July 1962, vol 242, col 531. Kilmuir, who responded some 20 minutes later (ibid, cols 536–37), said nothing to suggest that he disputed Rea’s recollection, though that could be because the point of the recollection was to flatter him (Kilmuir had achieved all three goals). 15 The political career had suffered a couple of false starts: he stood for the Conservatives in Wigan, Lancashire, at the 1924 general election, and in 1929 against Sir John Simon in Spen Valley, Yorkshire. Wigan, a Labour safe seat, was a lost cause. He was obliged to withdraw from the 1929 contest because the Conservatives decided to allow Simon, the sitting Liberal, to run unopposed owing to his having been responsible, since 1927, for chairing the Indian Statutory Commission. 16 See RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 164–65; Way of Life: The Memoirs of John Boyd-Carpenter (London, Sidgwick & Jackson, 1980) 261 (‘In the 1945 and 1950 Parliaments [Maxwell Fyfe] regularly stayed through all night sittings, and I often saw him, quickly shaved and breakfasted, going from the House straight on into Court. He spoke incessantly in the country, and did everything he was asked by the [Conservative] Party…. He would always find time to help and advise young Members’).

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the stresses and tedium of day-to-day political and legal problem-solving. His memoirs depict—with pride, not resentment—a ‘hard-working repertory actor’17 among political stars, a man who regularly worked unsociable hours and who relished the committee duties that others sought to avoid.18 Anthony Sampson interviewed Maxwell Fyfe when researching his Anatomy of Britain—he depicts him as ‘an amiable Scotsman in a dark grey suit’.19 The unpublished interview notes go a little further: ‘a second rate brain—but works hard’.20 The unpublished part of the assessment would not have caused Maxwell Fyfe any consternation. People are at their best, he insisted, when they are busy.21 Indolence—especially indolence in public service—bemused and offended him.22 He was, he believed, ‘envied in politics much more often for [his] physical stamina than for [his] brains’.23 In 1954, some journalists were wondering if Maxwell Fyfe might have the qualities to be leader of the Conservative Party. Their conclusion—that he had an ‘infinite capacity for taking pains’ but was definitely ‘not … a genius’—elicited from

17

Kilmuir, Political Adventure (n 2) 265. See ibid 73 (‘my fatal attraction for the chairmanship of committees’) 151; also Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 31 (‘Administration is an addiction’). 19 A Sampson, Anatomy of Britain (London, Hodder & Stoughton, 1962) 157. 20 A Sampson, ‘Talk w[ith] Lord Kilmuir’ 1 June 1961, in Anthony Sampson papers, Bodleian Library (Manuscripts and Rare Books), MS Sampson dep 65 ff 99–100 at 100. 21 Kilmuir, Political Adventure (n 2) 44 (‘[T]he human mind is like a motor-car engine, and the more you rev it up the more it can do’). 22 See ibid 144. 23 ibid 274. 18

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LORD KILMUIR: A VIGNETTE

him a simple response: ‘I agree’.24 He was aware of his limitations, and played to his strengths. With the hard work came political rewards. In March 1942, Maxwell Fyfe was made Solicitor-General, and in May 1945 he began a brief tenure—until Churchill’s caretaker government lost to Labour in the July election— as Attorney-General. As Solicitor-General Maxwell Fyfe had been closely involved in the international negotiations on procedures for trying War criminals once hostilities ceased. Once the Nuremberg trials began in November 1945, the Prime Minister, Clement Attlee, instructed his Attorney-General, Sir Hartley Shawcross, to serve as chief British prosecutor. Shawcross took the view that since Maxwell Fyfe had been involved in the preparations for Nuremberg, and since the prosecutorial task was not party-political, it made sense to invite him to be his deputy.25 Maxwell Fyfe—who appears to have jumped at this chance26—turned out to be a deputy in name only: he ‘consulted Shawcross on important problems’,27 but Shawcross’s political obligations on the domestic front generally kept him away from Nuremberg (his principal contributions were opening and closing speeches); Maxwell Fyfe was very much in charge of the day-to-day running of the British prosecution’s case.28 Though his endeavours immediately after Nuremberg— as one of the principal architects of the European Convention on Human Rights—have probably counted for more 24

ibid 229. Life Sentence: The Memoirs of Lord Shawcross (London, Constable, 1995) 99–100. 26 See Kilmuir, Political Adventure (n 2) 92. 27 T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York, Knopf, 1992) 213. 28 See P Calvocoressi, Nuremberg: The Facts, the Law and the Consequences (New York, Macmillan, 1948) 18. 25

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in the long run, his work as a Nazi prosecutor is often regarded as marking the pinnacle of his career. The minutes of the negotiations preceding the Nuremberg trials show him to be the arch-conciliator, forever striving— usually successfully—to formulate proposals and resolutions which would satisfy conflicting delegates. This, as often as not, meant trying to coax representatives untutored in the common law tradition to sign up to an Anglo-American understanding of ‘generally accepted necessities of natural justice or fairness’ (viz, the importance of making defendants aware of the evidence and charges submitted against them, allowing them the right to have their side heard and deeming them innocent till proved guilty).29 ‘I am a born optimist’, he remarked at one point in the negotiations, ‘and also a working politician’.30 His optimistic streak had been evident at the time of the Munich Agreement, when he supported Neville Chamberlain’s policy of appeasement. ‘If you are going to gamble and if your stake is a threat of war’, he observed in the commons in 1938, ‘then you must be prepared … to go to the mothers and wives of this country and ask them whether they would be prepared to let their sons and husbands die’.31 Those MPs who would have the

29 Minutes of Conference session of July 13, 1945, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials. London, 1945 (Washington, DC, Office of Public Affairs, 1949) 240; also Minutes of Conference session of July 2, ibid 133; Minutes of Conference session of July 16, ibid 257; Minutes of Conference session of July 17, ibid 270; Minutes of Conference session of July 20, ibid 319, 323–24. 30 Minutes of Conference session of July 23, in Report of Robert H. Jackson (n 29) 343–44. 31 HC Deb 4 Oct 1938, vol 339, col 246.

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country stand up for the Czechs in their refusal to accept Hitler’s demands to cede border areas to Germany offer us nothing except the inevitability of war, because that policy of threatening war … demands the readiness to pay the price…. I, and 95 per cent of those on these benches, refuse to face the inevitability of war…. [T]he hope of a new understanding with Germany … is … an inspiration drawn not only from peace, not only from the fact that we can stand here and on every moral ground defend the decisions that have been taken, but from our heartfelt gratitude to the Prime Minister which we recognise to-day.32

Seven years later, Maxwell Fyfe would be prosecuting Nazi officers who had, among many other things, conspired to commit crimes of aggression against Czechoslovakia. He may have been ‘in good company’ in favouring appeasement, he later recalled, but he had been ‘under a grave delusion’ nevertheless.33 David Eccles—who, like Maxwell Fyfe, served under Churchill, Eden and Macmillan in the 1950s—is reported as recounting that some Conservatives thought Maxwell Fyfe’s ‘fervour’ for European unity in the years following the Second World War was ‘an attempt to atone for his stance in 1938’.34 Whether or not this appraisal of his motives is accurate, there is certainly no doubt that Maxwell Fyfe was a committed European. When, in 1947, he accepted an invitation from Churchill to join the Committee of the United European Movement, he saw it as an opportunity ‘to do something positive after the part [he] had

32

ibid, cols 249–50. Kilmuir, Political Adventure (n 2) 51. 34 S Onslow, Backbench Debate within the Conservative Party and its Influence on British Foreign Policy, 1948–57 (London, Macmillan, 1997) 21. 33

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17

played in destroying Nazi ideology’.35 As a member of the Council of Europe, he was a key figure in the drafting of the European Convention on Human Rights—a story taken up in chapter nine. Britain’s failure, in the 1950s and 1960s, to embrace the idea of a European Union—the political ‘doubletalk and equivocation’, ‘the general mood of smug middle-class isolationist complacency’, the ‘little Englander[s]’, ‘the shrill xenophobia of the Beaverbrook Press’36—disappointed and angered him. The Conservative cabinet’s veto of the UK’s entry into Europe when the Party was returned to power in 1951 (repaid in kind when de Gaulle vetoed the UK’s first attempt at achieving membership of the European Economic Community 12 years later) was, in Maxwell Fyfe’s eyes, a missed opportunity.37 He would feel utter humiliation when, in November that year, Anthony Eden decided that the United Kingdom would not abide by what Maxwell Fyfe had taken to be an agreement in principle to participate in a European Defence Community.38 In the long term, however, Maxwell Fyfe’s conviction that the United Kingdom had to take more seriously the idea of a supranational Europe—including a European court of, as well as convention on, human rights—proved prescient. 35

Kilmuir, Political Adventure (n 2) 174. ibid 186–89. 37 ‘Had we taken our proper part in [1951–52] in associating ourselves warmly with European Union, our economic and political authority in the free world would have been enormously increased and also, I believe, the benefits would not have been confined to one side. The humiliation at Brussels in 1963 was, in modern parlance, the “pay-off” for our faint-heartedness and apparent duplicity’ (ibid 188). 38 See ibid 186–87. Eden insisted there had been no agreement and threatened Maxwell Fyfe with legal action for having used his memoirs to claim the contrary: see R Rhodes James, Anthony Eden (London, Macmillan, 1987) 614. The European Defence Community never came to be. For Eden’s account of his decision not to participate in the plan, see A Eden, Full Circle (Boston, Houghton Mifflin, 1960) 35–37. 36

III Conservatism Nuremberg and Strasbourg had been Maxwell Fyfe’s days in the sun. But after October 1951, when Churchill made him Home Secretary, some clouds began to gather. Indeed, this period in Maxwell Fyfe’s career had an inauspicious start, the backdrop to which—since it concerns his personal political philosophy—warrants some attention. At the time that Maxwell Fyfe was active on the European stage he had also, at home, been contributing to the Conservatives’ efforts to devise new policies which might convince the electorate to vote them back into office. According to one commentator, he ‘wanted a new-look Conservatism geared to a reassertion of competitive capitalism’.1 This claim is perhaps a little too stark. No doubt he hoped both that there would be a political makeover—after the 1945 election defeat, he recalled, he and others ‘gloomily contemplated the ruins’ of a Party that had lost over 30 parliamentary seats2— and that, with the War at an end, the Conservative Party would commit to re-establishing competitive markets. But capitalism, he insisted, is a responsible and humane as well as a competitive system. As an undergraduate 1

H Mercer, Constructing a Competitive Order: The Hidden History of British Antitrust Policies (Cambridge, Cambridge University Press, 1995) 98. 2 Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 137.

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contributor to The Oxford Review, he had sketched a vision of partnership-based conservatism, with the State as enabler of individual self-improvement and the individual recognizing, in turn, that it is only ‘by realizing his responsibilities towards the State that [he] can … escape from the lowest selfishness to a realization of himself’.3 Conservatism should also, within this project, encourage a sense of partnership between employer and employee—a claim which has at its heart the case for profit sharing. If we believe in the Capitalist system, … our economic object in industry will be first to secure as equal a distribution of profit [between employer and employee] as possible. It must be admitted frankly that in time past the Capitalist has gained a greater share [of profits] than he has a right to…. I think the old system of master and man will be continued only with extreme difficulty in this country, except in exceptional cases. The bitterness will only be allayed now by making a difference in the status of the workman, and one side of this change can be made by profit-sharing.4

Profit sharing, he insisted, is not anathema to conservatism. Paying employees usually requires firms to redistribute some of their profits; only an employer unable to distinguish self-interest from selfishness would be categorically opposed to any such redistribution. But Maxwell Fyfe’s proposition that employers should strive to share profits equally with their employees—an initiative which could diminish a firm’s profit motive and stymie its potential for economic expansion—was certainly not, and has never been, orthodox Conservative political philosophy.

3

D Maxwell Fyfe, ‘For the Defence’, Oxford Review 18 Nov 1919, p 2. D Maxwell Fyfe, ‘Profit Sharing and Co-Partnership’, Oxford Review 26 Feb 1920, pp 129–31 at 129–30. 4

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In the mid-1940s, there came the opportunity for Maxwell Fyfe to try to make some of the features of partnership-based conservatism integral to the Party’s policies on industrial relations and restrictive trade practices. In 1946, after the annual Party conference in Blackpool, Churchill appointed him to the Industrial Policy Committee (IPC). The IPC’s The Industrial Charter, published in May the following year by Conservative Central Office, sought to cast the Conservatives as endorsing free market principles while accepting that some industries, particularly public utility providers, ought to stay nationalized.5 This was the first of a series of Conservative Central Office pamphlets—the work of Maxwell Fyfe along with others6—purporting to set out core Tory pledges.7 None of these pamphlets is solely attributable to Maxwell Fyfe, and nearly all of them inevitably contain a large number of anodyne proclamations which could have been ascribed to more or less any Conservative politician of that period.8 Nevertheless, some of the specific arguments put forward in the pamphlets are ones which

5 The Industrial Charter: A Statement of Conservative Industrial Policy (London, Conservative and Unionist Central Office, 1947). 6 See Kilmuir, Political Adventure (n 2) 163–65. 7 See eg The Agricultural Charter: A Statement of Conservative Agricultural Policy (London, Conservative and Unionist Central Office, 1948); The Conservative Policy for Wales and Monmouthshire (London, Conservative and Unionist Central Office, 1949); Imperial Policy: A Statement of Conservative Policy for the British Empire and Commonwealth (London, Conservative and Unionist Central Office, 1949). 8 See eg This is the Road. The Conservative and Unionist Policy: General Election 1950 (London, Conservative and Unionist Central Office, 1950) 22 (‘We shall make Britain once again a place in which hard work, thrift, honesty and neighbourliness are honoured and win their true reward in wide freedom underneath the law’); Britain Strong

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Maxwell Fyfe would advance in a personal capacity. Consider examples from two pamphlets published in 1949. The Right Road for Britain makes the point which (as we will see in chapter nine) he was already emphasizing in the European arena: that the most likely effective bulwark against Nazi revival is the establishment of a transnational Europe.9 A True Balance, published five months earlier, proposed that women should be admitted to the upper house.10 In July that year, the lords voted in favour of allowing women to sit, though Parliament did not legislate until 1958; Maxwell Fyfe, by then Lord Chancellor, pushed hard to ensure the bill received Royal assent.11

and Free: A Statement of Conservative and Unionist Policy (London, Conservative and Unionist Central Office, 1951) 5 (‘Conservatives believe in a society in which men and women from every section of the community and in every calling have a real chance of personal achievement’). 9

The Right Road for Britain: The Conservative Party’s Statement of Policy (London, Conservative and Unionist Central Office, 1949) 60 (‘The establishment of a United Europe will help solve the twin problems of preventing a German Military revival and enabling her to play her proper part in the political and economic recovery of Europe’). Cf D Maxwell Fyfe, ‘Grotius Dinner’ (1950) 36 Transactions of the Grotius Society 53, 56–57 (‘[W]hat we wish to see in the place of the Nazi spirit … [is] tolerance, decency, kindliness…. I believe my Convention is a first step to this end’); also MO Duranti, Conservatism, Christian Democracy and the European Human Rights Project, 1945–1950 (PhD dissertation, Yale University, Faculty of the Graduate School, 2009) 307–08 (‘[By November 1950] Maxwell Fyfe had already begun to construct a narrative of the origins of the European Convention that drew a direct line from the international response to nazi [sic] crimes after the war to the European human rights project’). 10 A True Balance in the Home, in Employment, as Citizens: Report of the Conservative and Unionist Committee on Women’s Questions (London, Conservative and Unionist Central Office, 1949). 11 See eg HL Deb 5 Dec 1957, vol 206, cols 942–43 (‘[A]bout the question of women … I have listened in vain for the deployment of

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Particularly interesting is The Industrial Charter itself, which contains statements and passages (‘[m]an cannot live by economics alone’,12 ‘[o]ur policy is to humanize, not to nationalize’)13 which echo sentiments that Maxwell Fyfe elsewhere presented as his own,14 and which sometimes make the case which he himself made for partnership-based conservatism.15 The IPC’s attitude towards trade unions, furthermore, was essentially Maxwell Fyfe’s attitude: while, The Industrial Charter any serious argument…. [I]t is difficult to see how in these days any Government could bring in such a Bill as this and exclude women’); HL Deb 17 Dec 1957, vol 206, col 1227; also ‘Lady Kilmuir Tells Lawyers’ Wives: Ladies Won, Lords Wailed’, Washington Post 29 Aug 1960, B3. 12

The Industrial Charter (n 5) 3. ibid 28. See also The Right Road for Britain (n 9) 8 (‘Wherever modern life tends to dwarf the individual in comparison with the economic, political or social unit, the need is to humanise organisation, not to organise humanity’). 14 See eg D Maxwell Fyfe, Monopoly (London, Conservative Political Centre, 1948) 25–26 (‘It is not necessary to believe nor is it true that all or many monopolies consistently ignore the social consequences of their actions. Directors are human and even have consciences. The danger is rather that it may not be possible for those controlling a monopoly … to see and appreciate the full consequences of their activities’); Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 18 (‘No one who regards dispassionately … the changes that I have outlined could ignore the personal element in each one. However important economics may be, they are always bound up with individual and mass psychological reactions as well as with invention by the individuals. Anyone who tried to propound a merely economic theory of the history of the twentieth century would, in my view, be having regard to less than half the truth’); also Lord Kilmuir, The Comparative Influence of Personalities and Economics in the Twentieth Century (Edinburgh, Institute of Bankers in Scotland, 1957) 8–9. 15 See eg The Industrial Charter (n 5) 10 (‘[T]here must be a partnership between the Government, Industry and the Individual’); and cf Lord Kilmuir, ‘The Shaftesbury Tradition in Conservative Politics’ 13

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maintains, no employee should be compelled to join a union, and while the civil service and other employment sectors which are expected to have no political associations should be legally exempted from unionization,16 it is important ‘to state quite clearly that the official policy of the Conservative Party is in favour of trade unions’ and that ‘the … Party attaches the highest importance to the part to be played by the unions in guiding the national economy’.17 Although ‘the unions’ was one of those topics on which Maxwell Fyfe’s views were somewhat fluid, when pronouncing on trade and industry matters he invariably took the same line: ‘Conservatives have always recognized that employees have a legitimate right to protect themselves from sweating and undue pressure and to obtain fair wages for the job and good conditions of work’.18 The Industrial Charter concludes with the observation that we should ‘not underestimate the value’ of ‘profit-sharing’ and ‘employee-shareholding’: so long as ‘the employees want them’, ‘such schemes … are highly beneficial’.19 There is also, in the final paragraph, a recommendation for further reading: Co-partnership To-day, a pamphlet produced in 1946 by the Conservative Research Department. ‘The value of a successful profit-sharing … scheme’, it is suggested in Co-partnership To-day, ‘lies in the creation of a loyal team spirit in the firm and raising (1960) 3 Journal of Law & Economics 70, 73–74 (‘[P]artnership in welfare, with industry and individuals playing increasingly responsible roles, … is the way today to freedom, individual choice, and personal responsibility…. This is a plea not for laissez faire but for … a right balance and a real partnership between state and corporate or individual action’). 16 17 18 19

The Industrial Charter (n 5) 22. ibid 21. Maxwell Fyfe, Monopoly (n 14) 5. The Industrial Charter (n 5) 33–34.

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the status of the employee by taking him into the confidence of the management’.20 These endorsements of profit sharing are slightly more guarded, non-egalitarian variants on what Maxwell Fyfe had written about the subject in his undergraduate days. The claim that industrial success is unlikely if workers are not welcomed into the fold runs through much of the Conservative Central Office policy literature of the late-1940s. But was partnership-based conservatism actual Conservative policy? In 1947, at the Conservatives’ annual conference, a resolution was debated offering support for The Industrial Charter as an outline of the Party’s economic policy.21 Yet Churchill, though he gave the document his blessing soon after it was published, avoided endorsing any of its specific pledges.22 He was by no means resistant to the idea that employers should consult, and co-operate with, employees. But where pledges were concerned, he preferred to be the master—‘he did not want to be beholden to claimants outside the Cabinet to be the party’s conscience’23—and if employers were to co-operate and consult then, he maintained, it had to be through choice rather than legal compulsion; indeed, in the years following Labour’s repeal (in 1946) of the Trade Disputes and Trade Unions Act 1927, the Conservatives

20

Co-partnership To-day: A Survey of Profit-Sharing and Copartnership Schemes in Industry (London, Conservative Political Centre, 1946; repr 1955) 39. 21 See P Dorey, The Conservative Party and the Trade Unions (London, Routledge, 1995) 39. 22 See Addison, Churchill on the Home Front, 1900–1955 (London, Cape, 1992) 395. 23 K Middlemass, Power, Competition and the State. Volume I: Britain in Search of Balance, 1940–61 (London, Macmillan, 1986) 216.

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were eager to avoid introducing any legislation which had the potential to bring them into conflict with the unions.24 Maxwell Fyfe was to stray off-message. On 20 September 1951—the day after Clement Attlee dissolved Parliament and called for a general election to take place the following month—he made a radio broadcast, reported in The Times, in which he spoke of the Conservatives’ commitment to improving conditions in industry: [j]oint consultation between men and management in serious matters should be encouraged. The status and security of the worker should be improved by a written contract and a longer notice based on service…. Trade unions should occupy a central and independent position from which they could advise and bargain freely.25

All of this is to be found in The Industrial Charter.26 But Maxwell Fyfe went a little further: a Conservative government would not introduce trade union legislation, he remarked, without first consulting the unions. The surprise occasioned by this remark was not that the Conservatives would be willing to consult the unions, but that the possibility of legislation had not in fact been ruled out. Trade unionists were alarmed to learn of this, and Churchill felt moved to do some firefighting: ‘[t]he Conservative Party has no intention of initiating legislation affecting trade unions’, he promised just over two weeks before election day.27 Until that point, Maxwell Fyfe was expected, in the event of a Conservative victory, to be

24 See Dorey, The Conservative Party and the Trade Unions (n 21) 43–46. 25 ‘“Incentives for All”: Sir D. M. Fyfe on Way to Increase Output’, The Times 21 Sept 1951, p 3. 26 See The Industrial Charter (n 5) 29–30. 27 Anon, ‘Mr. Churchill’s Aims’, The Times 10 Oct 1951, p 7.

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appointed as Minister of Labour. But his injudiciousness apparently caused Churchill to reconsider.28 On the Conservatives’ return to office, the portfolio went to Walter Monckton—whom Churchill pointedly instructed not to antagonize the unions29—and Maxwell Fyfe was made Home Secretary, a post which he apparently accepted on the understanding that he would one day be appointed Lord Chancellor.30

28

See Dorey (n 21) 40–41. See B Evans and A Taylor, From Salisbury to Major: Continuity and Change in Conservative Politics (Manchester, Manchester University Press, 1996) 93. 30 See Kilmuir, Political Adventure (n 2) 190; A Seldon, Churchill’s Indian Summer: The Conservative Government, 1951–55 (London, Hodder & Stoughton, 1981) 120. 29

IV Domestic Politics For the most part, Maxwell Fyfe acquitted himself well as Home Secretary. To nobody’s surprise, he was a regular speaker in the House of Commons and was heavily involved in Cabinet committee work.1 In the commons he was responsible for ensuring that a variety of sometimes tedious, sometimes sensitive, and often quite complicated issues—notably the problems arising from the East coast floods at the end of January 1953, the reversal of the predecessor government’s decision that pubs in new towns be State-owned and -operated, the Queen’s coronation that June, and the introduction of commercial television—did not turn into political disasters. Controversies over law and order he invariably, and understandably, handled with considerable confidence. In November 1952, a private member’s bill was introduced into the commons proposing the reintroduction of corporal punishment (MPs were allowed a free vote). The bill’s supporters argued that since the enactment of section 2 of the Criminal Justice Act 1948, which outlawed corporal punishment for all criminal offences apart from those committed in prisons, there had been a significant increase in violent crime. Maxwell Fyfe demonstrated that, since 1948, there had in fact been a reduction in the incidence of some of 1 See A Seldon, Churchill’s Indian Summer: The Conservative Government, 1951–55 (London, Hodder & Stoughton, 1981) 91; DJ Dutton, ‘Fyfe, David Patrick Maxwell’, ODNB (www.oxforddnb.com).

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the crimes that had previously been punishable by flogging. Less than four and a half years had passed since the law abolishing corporal punishment had come into operation, he observed; it might be ‘premature to reverse [its] provisions’ before ‘there has been more time to assess the effects of the whole scheme introduced … for dealing with different categories of offenders’.2 More worryingly, he argued, it was far from clear where the law would end up if there were a reversal. If passed, the bill would make any violent misdemeanour subject to corporal punishment, no matter what the misdemeanour might be: ‘the subject is simply not susceptible of over-simplified treatment’, he insisted, for it would not be possible to carry out the intention of those who have introduced the Bill by any general provision on the lines … proposed…. If we were going to legislate on this problem, I think that it would be necessary to specify the particular offences for which corporal punishment could be awarded and that it would be necessary to consider very carefully what these offences would be.3

The bill was defeated by 159 votes to 63. A. HOMOSEXUAL OFFENCES

That Maxwell Fyfe handled law and order issues confidently does not mean, however, that he always handled them well. As Home Secretary, he adopted positions on the imprisonment of homosexual offenders and on the use and the retention of the death penalty which were unequivocal but controversial. In the early-1950s, homosexual acts were criminal offences. The popular press was wont to run 2 3

HC Deb 13 Feb 1953, vol 511, col 787. ibid, col 789.

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sensationalist stories about prosecutions—John Gielgud’s and Alan Turing’s cases are the ones best remembered today—and, indeed, about homosexuality generally. The sensationalism was partly grounded in concerns about homosexuals in government and civil service being an especial risk to the national interest because susceptible to blackmail—concerns likely attributable to the defections of Donald Maclean and Guy Burgess to the USSR in 1951, but possibly also intensified by the early-1950s US ‘Lavender Scare’ campaign for the removal of homosexuals from federal government.4 It was also based on the belief that the laws prohibiting homosexual acts were either insufficiently strict or not being enforced properly. In November 1953, in a speech to the Coningsby Club (a Conservative society for Oxbridge graduates), Maxwell Fyfe insisted that the latter view was inaccurate: statistics showed ‘a serious increase—between four-fold and five-fold’—in prosecutions for homosexual acts in the years following the Second World War.5 The following month, when asked in the commons if it was true that senior police officials had complained of lacking adequate legal powers to deal with homosexual offences, he batted the question away: there had been no complaints from the police, and there was ‘no reason to think that the[] penalties are inadequate’.6 As Home Secretary he had, he continued, ‘the duty to protect the people, especially 4

See J Weeks, Coming Out: Homosexual Politics in Britain from the Nineteenth Century to the Present (London, Quartet, 1977) 159–60. 5 ‘Notes for the Secretary of State’s Speech at the Coningsby Club, 19th November, 1953’, National Archives, HO 45/24955, C576195. (The file contains two versions of the speech—a draft dated 17 November and a corrected version. Quotations are from the corrected version.) 6 HC Deb 3 Dec 1953, vol 521, col 1296; also ‘Notes for the Secretary of State’s Speech at the Coningsby Club’, ibid (‘It is sometimes suggested that the existing law does not provide the courts with adequate

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the youth, of this country’7 (a Daily Mail headline the following morning).8 This meant pursuing prosecutions for homosexual acts vigorously: ‘even if imprisonment fails to secure any improvement in the homosexual’s character and behaviour’, he maintained, ‘it serves to protect the public by the segregation of the offender’.9 When asked around this time by an American interviewer whether the British should outlaw the Communist Party, his wry answer was that not only would one expect a system committed to ‘even-handed justice’ to allow Communists the same freedoms as all other citizens, but that tolerance is the better legal response to some forms of behaviour deemed offensive and potentially dangerous, because otherwise the behaviour is likely to be driven underground.10 This reasoning had not made its way into his parliamentary observations on homosexuals—from whom, he was adamant, the public needed protecting, because … in general [they] are exhibitionists and proselytisers and are a danger to others, especially the young, and so

powers for dealing with these offences, but I do not think that this suggestion can be sustained. For the most serious offences of this kind, the maximum penalty is life imprisonment, for attempts to commit such offences ten years, while for acts of gross indecency, and for importuning, it is two years’ imprisonment’). 7

HC Deb 3 Dec 1953, vol 521, col 1299. R Camp, ‘Fyfe: My Duty to Guard Youth: “Vice will be Punished so Long as I Hold Office”’, The Daily Mail 4 Dec 1953, p 5. 9 ‘Notes for the Secretary of State’s Speech at the Coningsby Club’ (n 5) (handwritten addition to the corrected version). 10 ‘Interview with Sir David Maxwell Fyfe, England’s Home Secretary: How Britain Handles Communists’, US News & World Report 15 Oct 1954, pp 86–90 at 87. See also ‘Liberty in A Cold War’ [report of address by Maxwell Fyfe to US press correspondents in London], Washington Post 15 Feb 1953, B4 (‘The object of our way of life … is essentially practicing our traditions of tolerance’). 8

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long as I hold the office of Home Secretary I shall give no countenance to the view that they should not be prevented from being such a danger.11

This statement is hardly Maxwell Fyfe’s finest hour. He did not, however, let his personal opinion cloud his political judgement. In February 1954, in a memorandum to the Cabinet, he reiterated his view that there was no need to alter the law relating to homosexuality12 (to one Tory backbencher who maintained that there was such a need, he is said to have responded that he had no intention of ‘going down in history as the man who made sodomy legal’).13 But he also conceded that there had ‘been a serious increase in homosexual offences’, and that there existed ‘a considerable body of opinion which regards the existing law as antiquated and out of harmony with modern knowledge and ideas, and … represents that unnatural relations between consenting adults … should no longer be criminal in this country’.14 Ordering an independent inquiry into the state of the law relating to the treatment of homosexuals could, he noted, prove ‘embarrassing’ if it resulted in legal reform recommendations.15 ‘On the other 11

HC Deb 3 Dec 1953, vol 521, col 1298. D Maxwell Fyfe, ‘Sexual Offences: Memorandum by the Secretary of State for the Home Department and Minister for Welsh Affairs’, C (54) 60 (Secret), 17 Feb 1954 [signed 16 Feb], National Archives, CAB 129/66 (‘I do not myself believe that there is any case for altering the law relating to homosexuality’). 13 See R Rhodes James, Robert Boothby: A Portrait of Churchill’s Ally (London, Viking, 1991) 369–70; K Gleeson, ‘Discipline, Punishment and the Homosexual in Law’ (2007) 28 Liverpool Law Review 327, 330–31; D Kynaston, Family Britain 1951–57 (London, Bloomsbury, 2009) 370. 14 ‘Sexual Offences: Memorandum by the Secretary of State’ (n 12) 2. See also anon, ‘Case for Inquiry on Homosexuality Law’, The Observer 21 Feb 1954, p 4. 15 ‘Sexual Offences: Memorandum by the Secretary of State’ (n 12) 3. 12

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hand’, he continued, the government would very likely face ‘strong criticism’ if an inquiry was not set up (especially since there was likely to be an inquiry into the state of the law relating to prostitution), and ‘a dispassionate survey by a competent and unprejudiced body might be of value in educating public opinion, which at present is ill-informed and apt to be misled by sensational articles in the press’.16 On balance, he concluded, there should be an independent inquiry. When the Cabinet met the next week, it deferred deciding on the matter.17 The following month it did the same again, and invited Maxwell Fyfe ‘to submit a memorandum summarizing the arguments for and against legislation designed to restrict publication of the prosecutions for homosexual offences’.18 Maxwell Fyfe’s memorandum, written at the end of March, advised against introducing legislation to restrict the press, but also reiterated that the government might be foolish to undertake any sort of reform in this area if there were no inquiry first. Were there to be legislation without an inquiry, it would be said that the Government had not merely declined to hold an inquiry, in spite of the great and unexplained increase in such offences and of the fact that the existing law was regarded as unsatisfactory by many responsible people, but were endeavouring to suppress the publication of evidence which showed the need for an inquiry.19

16

ibid. Cabinet minutes, CC (54) 11th Conclusions, 14 Feb 1954, National Archives, CAB 128/27. 18 Cabinet minutes CC (54) 20th Conclusions, 17 March 1954, National Archives, CAB 128/27. 19 D Maxwell Fyfe, ‘Restrictions on the Reporting of Proceedings for Homosexual Offences’, C (54) 121 (Secret), 1 April 1954 [signed 31 March], National Archives, CAB 129/67. 17

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On 28 March, The Sunday Times had published a leader—prompted by what the editors considered unfair convictions in the Montagu-Wildeblood indecency trial— which concluded that ‘[t]he case for a reform of the law as to acts committed in private between adults’ was now ‘very strong’ and that the ‘[t]he case for authoritative inquiry’ was ‘overwhelming’.20 The minutes of the Cabinet meeting of 15 April report that Maxwell Fyfe ‘felt obliged to press his earlier proposal for the holding of an independent enquiry into the law relating to … homosexual offences’.21 This time, the entreaty was not to no avail: ‘[t]he Cabinet … [a]greed that a Departmental Committee should be appointed’.22 That Committee—the Wolfenden Committee—was appointed by Maxwell Fyfe in August 1954. In September 1957, it recommended that homosexual practices between consenting adults in private should no longer be a crime.23 The recommendation eventually became law under section 1 of the Sexual Offences Act 1967. 20 ‘Law and Hypocrisy’, The Sunday Times 28 March 1954, p 6. See M Kirby, ‘Remembering Wolfenden’ (2007) 66 Meanjin 127, 127 (‘[E]stablishment of the [Wolfenden] committee was probably the direct result of an article, “Law and hypocrisy”, published in The Sunday Times in March 1954’). (On the path from Wolfenden to Kirby’s own work in the mid-1960s (for the Australian Council for Civil Liberties) on the reform of New South Wales’s laws relating to homosexual acts, see D Dellora, Michael Kirby: Law, Love & Life (Melbourne, Penguin, 2012) 102–05.) 21 Cabinet minutes, CC 29 (54) 29th Conclusions, 15 April 1954, National Archives, CAB 128/27. 22 ibid. By this time Harold Macmillan, then the Minister of Housing and Local Government, had apparently joined with Maxwell Fyfe in making the case for an inquiry: see JD Bengry, The Pink Pound: Commerce and Homosexuality in Britain, 1900–1967 (PhD dissertation, University of California at Santa Barbara, Department of History, 2010) 157. 23 Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247, 1957) para 62.

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Maxwell Fyfe has often been depicted as a homophobic Home Secretary who would have preferred the law to stay as it was.24 To seek to challenge this depiction would be to set out on a fool’s mission.25 Yet the canvass accommodates at least a little bit of shading. He turned out, in short, to be a facilitator of legal reform malgré lui. From the spring 1954 Cabinet minutes and memoranda there emerges a Home Secretary who—no doubt guided by his instincts as to what would be the least politically fractious way forward—played a significant role in clearing the path towards legal change, and who, had he not distinguished his personal views from political choice, might have ensured that the reform process took longer and proceeded less smoothly than it did.26

24 See eg A Grey, Quest for Justice: Towards Homosexual Emancipation (London, Sinclair-Stevenson, 1992) 22; Weeks, Coming Out (n 4) 239–40; J Campbell, Roy Jenkins: A Well-Rounded Life (London, Cape, 2014) 182 (‘[T]he most illiberal Home Secretary since the 1920s’). 25 Not the least because the report of the Wolfenden Committee altered his views not a jot: ‘[t]he most far-reaching and widely discussed of the Committee’s proposals is, of course, that homosexual behaviour in private between consenting adults should no longer be a criminal offence…. Her Majesty’s Government do not think that the general sense of the community is with the Committee in this recommendation…. [F]or the State to remove the sanctions of the criminal law from homosexual behaviour, even between consenting adults in private, … would be tantamount to suggesting that there is nothing socially harmful in such behaviour and would inevitably have as its consequence that young people would be encouraged to indulge in it, and that society would be corrupted. I believe that this is not an argument which can be lightly dismissed’. HL Deb 4 Dec 1957, vol 206, cols 772–73 (Lord Kilmuir). 26 Maxwell Fyfe has been branded a colonialist as well as homophobic: see eg C Waters, ‘“Dark Strangers” in our Midst: Discourses of Race and Nation in Britain, 1947–63’ (1997) 36 Journal of British Studies 207, 215. That colonialism should be used as a term of abuse Maxwell Fyfe found ‘difficult to understand’ (The Commonwealth

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B. CAPITAL PUNISHMENT

Were Maxwell Fyfe alive today, he would in all likelihood be very surprised that his part in the prelude to Wolfenden should be considered noteworthy. Compared with some of his other initiatives and accomplishments as Home Secretary, the episode would have been, for him, routine political fare. But the second notable imbroglio from his years as Home Secretary, the controversy occasioned by his attitude towards the death penalty and the use of the royal prerogative, was one of the tougher challenges in his political career.

Statesman in International Politics (Toronto, University of Toronto Press, 1958) 21); so far as he was concerned, colonialists are essentially people who do the right thing by their dependents (see ibid 9). There was certainly built into this belief the idea that the British, with their ‘special heritage’ (ibid), are somehow set apart from other citizens within the Empire. He was in no doubt, furthermore, that people from the Dominions should not have an automatic right to British citizenship (see HC Deb 13 July 1948, vol 453, col 1027) and that it would be economically and logistically unwise not to restrict migration to the UK from the Commonwealth (see HL Deb 19 March 1962, vol 238, cols 421–26). In the late-1940s, he spoke publicly of how he was ‘proud’ that the country ‘impose[d] no colour bar restrictions’ (HC Deb 7 July 1948, vol 453, col 403). But in Cabinet in February 1954, he advocated a reversal of this policy (Cabinet notebooks CC (54) 7, 3 Feb 1954, National Archives, CAB 195/11/90, agendum 4; see also Kynaston, Family Britain (n 13) 367). Two years later, he presented to Cabinet a report noting the rapid rise in non-white immigration between 1953 and 1955 and recommending legislation restricting migration to Britain from the entire Commonwealth: ‘Colonial Immigrants: Report of the Committee of Ministers’, CP (56) 145, 22 June 1956, National Archives, CAB 129/81/45. (Cabinet declined to implement the report, primarily because implementation would have restricted white as well as non-white migration from Commonwealth countries: Cabinet minutes CM (56) 48th Conclusions, 11 July 1956, National Archives, CAB 128/30/272, pt II, agendum 10.)

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In 1948, Maxwell Fyfe stated in the commons that the case for retaining the death penalty simply comes down to … the question whether or not it is a deterrent…. For the first five or ten working years of my life, I came into contact at short intervals with the criminal population of Lancashire…. I believe, as strongly as I can hold a belief, that with the ordinary run of these fellows, the thing that keeps them from giving an old lady a crack over the head, or prevents them from using violence when it is difficult to get away, is the fear that if they go too far then ‘the 8 o’clock walk’ may well await them.27

Worries about irreversibility held no sway with him: there is, he insisted, ‘no practical possibility’ of an innocent person being put to death.28 The following year, a man named Walter Graham Rowland was sentenced to death for murdering a woman with a hammer. Around the time of sentencing, another man, David Ware, confessed to the same murder. But Ware subsequently retracted his confession, and Rowland was hanged. In 1951, Ware was imprisoned for attempting to murder another woman by the same method. Rowland had always protested his innocence. Might there have been a miscarriage of justice? Maxwell Fyfe, now Home Secretary, thought not.29 He did concede, however, that the question of whether evidence in Rowland’s favour had been withheld at the time was worth looking into, and he said that he would do so.30 When questioned again, the

27 HC Deb 14 April 1948, vol 449, cols 1080–81. See also HL Deb 9 July 1956, vol 198, cols 579–80 (Lord Kilmuir) (‘It is the murders which have not been committed that matter…. I believe that the death penalty is a uniquely effective deterrent’). 28 HC Deb 14 April 1948, vol 449, col 1077. 29 HC Deb 6 Dec 1951, vol 494, col 2553. 30 ibid, col 2554.

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following March, about ‘what steps he propose[d] to take, in view of grave doubts that have arisen in recent cases, to ensure that innocent men are not hanged’,31 he supplied a terse written reply, reiterating what he had said in 1948: ‘I cannot accept the suggestion that innocent men are hanged in this country and I know of no foundation for any doubts which are alleged to exist’.32 This response was even less convincing in 1952 than it had been in 1948. In December 1949, Beryl Evans and her one year-old daughter were found strangled in a house in west London. The husband and father, Timothy Evans, was charged with murder, primarily on the basis of his own statements and the testimony of the family’s neighbour, John Christie. Evans at first confessed to the murders but then recanted and alleged that Christie was the murderer. Christie was a witness for the prosecution. The jury found Christie, who had a criminal record but who had also served in the army and the police force, to be the more credible of the two. Evans was hanged in March 1950. Three years later, the body of Christie’s wife and three other bodies were found strangled at Christie’s home (two skeletons were later found buried in the garden). Christie unsuccessfully pled insanity, and was sentenced to death in June 1953. In the course of the trial, he testified to murdering Beryl Evans. Maxwell Fyfe appointed John Henderson QC to conduct an inquiry into, and produce an official report on, Timothy Evans’s execution. The inquiry was held in secret and completed in just five days, and the report—published within a fortnight of the inquiry having been announced—concluded that

31 32

HC Deb 13 March 1952, vol 497, col 146W (Mr Sydney Silverman). ibid, col 146W.

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Timothy Evans’s guilt was beyond doubt and that Christie’s confession to the murder of Beryl Evans was a lie.33 Timothy Evans received a posthumous pardon in 1966. But in 1953, Maxwell Fyfe stood steadfastly by Henderson’s report. He refused to place in the commons library a transcript of the evidence Henderson had gathered,34 and was unsympathetic to requests that a fresh (and, this time, public) inquiry into Evans’s case be set up.35 Here was a Home Secretary who was insistent that innocent citizens could never be executed, and who had hurriedly set up and who defended to the hilt a private, hastily conducted inquiry which concluded ‘that everything about the Evans case had been perfectly in order, that it was Evans who had lied and Christie, a convicted multi-murderer, who had told the truth’.36 Aneurin Bevan—an archetypal Tory-baiter—denounced the Home Secretary for being more concerned with defending the reputation of the member of the legal profession whom he appointed to conduct the inquiry than to defend the integrity of British justice, and far more concerned about that than he [wa]s to satisfy public opinion that justice has been done.37

Maxwell Fyfe’s resistance to the reintroduction of corporal punishment had bolstered his political reputation. His handling of concerns about capital punishment seemed to be diminishing it.

33

See BP Block and J Hostettler, Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (Sherfield-onLoddon, Waterside Press, 1997) 146–47. 34 HC Deb 16 July 1953, vol 517, cols 2225–26. 35 HC Deb 29 July 1953, vol 518, col 1479. 36 Block and Hostettler, Hanging in the Balance (n 33) 148. 37 HC Deb 29 July 1953, vol 518, cols 1483–84. See also HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, Clarendon Press, 1968) 89, 252–53.

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Worse was to come. In November 1952, sixteen-yearold Christopher Craig murdered a police officer when he and his accomplice, nineteen-year-old Derek Bentley, were trying to flee the scene of a crime. Bentley had been apprehended, but Craig, who had a gun, was refusing to give himself up. Craig shot and wounded one of the officers—allegedly after Bentley shouted, ‘let him have it, Chris’—and when other officers then pursued Craig he fired further shots, one of which hit and instantly killed PC Sydney Miles. Craig and Bentley were simultaneously tried for murder, the prosecution’s case being that Craig willfully and deliberately took the life of PC Miles and that Bentley incited Craig to begin shooting and so was equally responsible in law. Craig was convicted of murder but, because he was only sixteen, was not sentenced to death. Bentley—who had shown no violence to any of the officers on the scene, who said that he did not know Craig had a gun and that he had uttered nothing before the shots resulting in PC Miles’s death were fired, and whose IQ score put him in the bottom 1 per cent of the population—was found guilty of murder by joint venture and sentenced to death. The jury added a recommendation for mercy. The decision as regards mercy was for the Home Secretary rather than the judge. Maxwell Fyfe saw no reason to grant a reprieve, and Bentley was executed in January 1953.38 The decision was extremely (though not universally39) unpopular, and Maxwell Fyfe was

38

He was given a royal pardon 40 years later. His conviction was quashed as unsafe by the Court of Appeal in 2001: Bentley (Deceased) [2001] 1 Cr App R 307. 39 See Kynaston (n 13) 261–62.

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subjected to intense political and public scorn.40 ‘In the streets there were demonstrations, and the police guard on the Maxwell Fyfe flat in Gray’s Inn had to be doubled’, Heuston recounts. Two hundred MPs, including ten ex-Ministers, signed a motion asking the Home Secretary to reconsider his decision. Maxwell Fyfe decided to give no public reason for the decision, and it was his alone, to allow the law to take its course. White-faced and silent, he was a grim sight on the front bench.41

A politician, Maxwell Fyfe observed in his memoirs, must have conviction and courage …, and when he has come to a decision … he must be prepared for the unpleasant consequences … and … must hold his ground…. He must be prepared to face not only the jibes and attacks of his opponents, but also the embarrassment and unhappiness of his friends; … and he must do all this in cold blood, and live through it for weeks, months, perhaps years.42

This was possibly an oblique description of what he experienced. But why had he put himself in that position? For Maxwell Fyfe, the decision was not so much against Bentley as for a policeman who had served on the force for

40 See Maxwell Fyfe’s own matter-of-fact account at Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 206–10. 41 RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 168–69. 42 Kilmuir, Political Adventure (n 40) 6–7. Similarly for the lawyer: ‘he must be courageous. Arguing for an unpopular cause is never easy, and may be dangerous; but if there is nobody to undertake it there can be no true liberty’. Lord Kilmuir, ‘The Service of the Law’ (1958) 7 University of Chicago Law School Record 8, 9.

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22 years, and for his widow and two children.43 In later years, Maxwell Fyfe’s own widow would try to cast more light on the matter: His reasoning, as I remember it, was that, if a young man of Bentley’s age got off because he went out on that kind of enterprise with an even younger man who did not hang, it would happen again. It would be an encouragement to similar exploits…. He felt strongly that you had to protect the police, if you did not want to arm them and he very much did not want to arm them! He felt all young men would take out someone slightly younger on a felonious enterprise armed with a gun, it would be a marvelous escape-hole for the guilty.44

It is difficult to imagine that Maxwell Fyfe really did allow Bentley’s sentence to stand because he feared that, were he to commute it, strategically minded would-be murderers would henceforth protect themselves against the death penalty by ensuring that armed minors accompanied them on their homicidal ventures. But then the supposition is hardly less fanciful than Maxwell Fyfe’s own unequivocal insistence that imposing the death penalty on innocent people is a practical impossibility. There is certainly no doubt that he wanted the police properly protected, and that he considered a strict rule imposing the death penalty on anyone found guilty of murdering a police officer to be an important part of that protection.45

43

Kilmuir, Political Adventure (n 40) 207–08. Lady de la Warr, interview with Fenton Bresler, 21 Nov 1973, quoted in F Bresler, Lord Goddard: A Biography of Rayner Goddard, Lord Chief Justice of England (London, Harrap, 1977) 257. 45 See also HL Deb 20 July 1965, vol 268, col 643 (Lord Kilmuir) (‘From the number of criminals that I have known, seen, tried and whose cases I have considered, which means a very large number, 44

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It seems reasonable to presume, furthermore, that doing right by the police would, for Maxwell Fyfe, have meant more than just protecting them. He was a great lover of ceremony and respecter of authority; his memoirs contain many a tribute to royalty, to country and to the pillars of the Conservative establishment (particularly to Winston Churchill). It is difficult to imagine him reaching a decision which police officers and Conservatives strong on law and order might have interpreted as apostasy. But presumption—speculation—is all this is. About Maxwell Fyfe’s motivations in deciding to refuse clemency to Bentley we cannot really be sure.

I believe that hanging, the threat of the rope, is a deterrent to the professional criminal against arming himself with a revolver or an automatic and being prepared to kill the policeman whose duty it is to arrest him, who he knows is unarmed. Of course, as has been said, to arm the police would be a deterrent, but it would completely alter the nature of the police force’). Kilmuir was opposing the Murder (Abolition of the Death Penalty) Bill, which received Royal assent in November 1965, subject to repeal if not renewed within five years (the legislation was renewed in 1969).

V Suez The reason for drawing attention to Maxwell Fyfe’s interventions on the legal classification of homosexual acts and on the use of capital punishment is not primarily to criticize him for holding the views that he held, but rather to provide some sense of how he handled tough political decisions. In both instances he sought to avoid prevarication. But whereas, when considering the law on homosexual acts, he sought not to allow his reflections on how best to proceed politically to be affected by his personal views, his refusal to commute Bentley’s sentence—a decision entirely within his discretion— seems to have been guided by his own conscience. A third political controversy in which he became embroiled—the Suez crisis—casts him in still more unflattering light. Yet again, his approach to a dilemma was to settle on a path and to stick to it come what may. This made him an asset to some of those ministers who sought his advice: they knew they could depend on his consistency. But some of the civil servants in his midst saw something else— a legal advisor who was certainly dependable, but only in the sense that he could be relied upon to provide an insufficiently well thought-out answer. In March 1956, Maxwell Fyfe—or rather, to give him the title he had acquired on becoming Lord Chancellor in October 1954, Kilmuir—delivered a lecture at the University of Birmingham in which he looked back at the Nuremberg military tribunal and sought ‘to consider

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objectively and from the standpoint of international law the criticisms that have been made of it’.1 In particular, he sought to reassure any remaining doubters that the tribunal had been legitimately composed and that successful prosecutions had not depended on the tribunal treating as crimes actions which were not crimes when they were performed. To the objection that the tribunal’s jurisdiction had been plucked out of thin air Kilmuir responded that, although there was no rule of international law granting the Allied powers the authority to try the Nuremberg defendants, there was likewise no rule which ‘forbade’ them that authority, and so they were perfectly within their rights to assume it.2 The obvious rejoinder to this response is that if the test of valid jurisdiction is not whether it has been granted but whether it has been withheld, all sorts of conglomerates—some with laudable motives, some without—might reasonably argue that they are entitled to assume jurisdiction over a set of events because there exists no rule to the contrary. No less troublesome than the assertion of ex post facto jurisdiction was the apparent reliance on ex post facto law: it seemed that some of the actions of the Nuremberg defendants could be deemed criminal actions only so long as the tribunal relied on penal laws which either did not exist or did not apply to those actions at the time that the actions were taken. But Kilmuir disagreed. None of the successful prosecutions, he insisted, depended on legal rules being retroactively applied. ‘No one would deny that it is ex post facto and bad to legislate in order to make

1 Lord Kilmuir, Nuremberg in Retrospect (Birmingham, Holdsworth Club, 1956) 1. 2 See ibid 5.

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criminal that which was not a crime when committed’, he conceded, but it is far otherwise when a competent court declares that some act was a crime when it was committed, although there may have been no previous express decision to that effect. The … argument before the [Nuremberg] Tribunal … came down to the proposition that the defendants could not be punished for acts which had not [at the time that they were performed] been specified as being criminal by legislation…. [I]n my view this argument ignores the existence of the common law of nations…. [T]he defendants could not object to a properly constituted tribunal … giv[ing] a judicial decision … consistently with applicable principles of international law which in my view undoubtedly existed.3

So it is that Kilmuir rejected the charge of retroactivity by relying on the declaratory theory of customary international law. What, however, were the laws being declared? As Kilmuir saw it, applicable legal principles ‘undoubtedly existed’. And yet—beyond identifying proclamations in the 1907 Hague Convention concerning the protection of citizens (‘[u]ntil a more complete code of the laws of war has been issued’) in accordance with ‘the laws of humanity, and the dictates of the public conscience’— there were no specific laws or rulings to which he could point.4 Lord Atkin had espied the problem in 1931: The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with legal consequences? …

3 ibid 10–11; repeated at Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 333–34. See also D Maxwell Fyfe, ‘The Nuremberg Trials and Their Implications for the Armed Forces’ (1948) 75 Journal of the Royal Artillery 173, 175. 4 See Kilmuir, Nuremberg in Retrospect (n 1) 14.

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It appears … to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of ‘criminal jurisprudence’; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State.5

For Kilmuir, unlike Atkin, it was a case of ‘seek and you shall find’: the legality of the strongly supported political initiative becomes evident to anyone intent on discovering its source. Those on trial at Nuremberg surely could not successfully raise the nullum crimen defence, because the criminality of Nazi atrocities was just as surely embedded somewhere in ‘the common law of nations’. That Kilmuir’s reflections on Nuremberg were beset by wishful thinking posed no real problem. The tribunal’s work was done, and, even if there were unresolved technical questions about the legality of the tribunal’s jurisdiction and about ex post facto law, this hardly compelled the conclusion that Nuremberg had been a mistake. Indeed, Kilmuir’s reasoning might have been weak, but his instincts—that it would have been absurd not to recognize the tribunal’s authority, and that some actions may be so deeply and deliberately odious that they should be treated as criminal even if, at the time that they were taken, no law made them criminal—were perfectly sound. Not long after Kilmuir delivered his Birmingham address, however, he was to advise on a legal problem which put his predilection for seeking and inevitably finding in a somewhat dimmer light. On 26 July 1956, the then Egyptian president, Colonel Gamel Abdal Nasser, had his military seize the property of the Anglo-French 5 Proprietary Articles Trade Association v A-G (Canada) [1931] AC 310 (PC), 324.

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Suez Canal Company and declared that he would use the revenue from the Canal to finance the construction of a high dam at Aswan. The Suez Canal was valuable to Nasser because it would cover the costs of creating not only the dam but also, next to it, a vast reservoir which could be used to regulate the flow of the Nile, to generate electricity and to provide irrigation.6 The British and the French valued the Canal because it was the primary route for Middle East oil.7 On 29 July, the French Cabinet resolved to take military action against Egypt. The French planned to act in concert with the Israelis, who feared Egypt’s Soviet-supported military growth in a period of intensifying Arab nationalism, and they invited the British to join their campaign. The British Prime Minister, Anthony Eden, whose anger at Nasser’s actions bordered on maniacal (possibly because he was taking prescribed amphetamines to combat a serious bile-duct infection), was certainly up for the fight.8 But on Eden’s other shoulder sat the United States: the Eisenhower administration feared a scenario which could provoke Soviet intervention in the region—so intensifying the Cold War—and 6 See K Kyle, Suez: Britain’s End of Empire in the Middle East (London, Weidenfeld & Nicolson, 1991) 77. 7 See P Cradock, Know Your Enemy: How the Joint Intelligence Committee Saw the World (London, Murray, 2002) 109 (‘In the 1950s … the rapidly growing importance of Middle East oil gave the British presence a new justification and reinforced old interests. By 1955, 80 per cent of Western Europe’s oil was of Middle East origin, as compared with 19 per cent in 1938, and the Suez Canal, in which Britain retained a controlling interest, was the choke-point for supplies’). 8 See P Hennessy, Having It So Good: Britain in the Fifties (London, Penguin, 2007; orig publ 2006) 409–12; also Cradock, Know Your Enemy (n 7) 117; A Nutting, No End of a Lesson: The Story of Suez (New York, Potter, 1967) 107 (‘Eden was a very sick man. He had always been excitable and temperamental, but in the last few months he had seemed to be on the verge of a breakdown’).

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repeatedly urged the British and the French to tread carefully and, especially, to avoid engaging in unjustifiable military aggression against Egypt.9 The American warnings went unheeded. On 24 October, the British, Israeli and French heads of state concluded a secret agreement that Israel should attack Egypt so as to provide a pretext for the Anglo-French invasion of Suez. Israel launched a military attack against Egypt on the 29th, whereupon Britain and France issued a joint ‘ultimatum’ calling on the two States to cease hostilities by the morning of the 31st.10 With the expiry of the ultimatum, British and French planes began bombing Egypt. Their joint airborne task force landed just north of the Suez Canal, at Port Said, on 5 November.11 Eisenhower was furious. In the previous week, Soviet tanks had entered Budapest and ruthlessly quashed popular unrest—an initiative which might have met with severe American condemnation were it not that America’s primary allies were dropping bombs on Cairo. On 1 November, the UN General Assembly had passed a resolution—accepted unconditionally by Egypt and Israel—that all parties agree to an immediate ceasefire. The British were quickly made to understand that US support for an International Monetary Fund loan to Britain would not be forthcoming until a ceasefire was ordered.12 On 6 November, the allied high command, in the face of strong French opposition, gave the order 9

See Hennessy, Having It So Good (n 8) 413–14. Anthony Nutting, the then Minister of State for Foreign Affairs, resigned his post on the same day. ‘I felt no anger’, he wrote in 1967, ‘only sadness that Ministers, and in particular Eden, who had always in the past seemed such a model of integrity in public affairs, should now debase our standards of international behaviour by this disreputable manoeuvre’. Nutting, No End of a Lesson (n 8) 106. 11 See Hennessy, Having It So Good (n 8) 435–36. 12 See ibid 447; also Cradock, Know Your Enemy (n 7) 128–29. 10

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to end hostilities.13 ‘Never in my life-time has our name stood so low in the eyes of the world’, one contributor to The Times letters page remarked on that day. ‘Never have we stood so ingloriously alone. Our proud tradition has been tragically tarnished’.14 Only one of the many intricacies of the Suez crisis need detain us: was the Franco-British use of force against Egypt justifiable? Article 51 of the United Nations Charter (1945) establishes a ‘right of individual or collective selfdefense’ in the event of ‘an armed attack occur[ing] against a Member of the United Nations’. Judged in accordance with Article 51, which envisages one nation (or group of nations) using force in self-defence when another nation (or group of nations) has attacked it, the Franco-British intervention was not a justifiable use of force: since the Suez Canal Company was an Egyptian Company registered under Egyptian law, Nasser’s decision to nationalize it could not be interpreted as an Egyptian attack ‘against a Member of the United Nations’. On the day after the Canal was nationalized, the British Cabinet met and ‘agreed that we should be on weak ground’ if the explanation for intervening was that ‘Nasser had acted illegally’.15 Yet Kilmuir, who was in attendance at the Cabinet meeting, took a different view. In his diary entry for 26 July he notes having ‘got over the point I think that it was wrong 13 See A Horne, Macmillan: The Official Biography (London, Macmillan, 2008) 448. Anglo-French military forces were not fully withdrawn from Egypt until late in December. 14 V Bonham Carter, ‘Landings in Egypt’ The Times 6 Nov 1956, p 11. Cf Kilmuir, Political Adventure (n 3) 276 (‘Suez did us no harm politically, either in the short or the long view’) with Political Adventure (n 3) 288–89 (‘Suez had shaken the [Conservative] party to its foundations…. Our most loyal workers [were] dismayed by our handling of the situation’). 15 Cabinet minutes CM (56) 54th Conclusions, 27 July 1956, National Archives, CAB 128/30/278.

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in international law to endanger the international control of an international waterway and that the company had been treated as an international entity’.16 Force could certainly only be used as a last resort—Harold Macmillan notes in his diaries how Kilmuir emphasized this point to Cabinet when it met on 28 August.17 But the use of force as a last resort would not, Kilmuir insisted, be in contravention of international law: ‘if we were satisfied that a just settlement could not be secured through the machinery of the United Nations’, the Cabinet minutes for the 28th record him as saying, ‘we should ourselves take other steps to secure it’ and, if necessary, ‘impose it by force’.18 ‘From the first’, he recalled in his memoirs, I thought that it was wrong in international law to end unilaterally and by threat of force the international control of an international waterway…. I further took the view that to … end international control by force was forcible aggression against territory marked with an international character, which … could be decided … under Article 51 of the Charter of the United Nations.19

Kilmuir knew that he was placing a decidedly strained construction on Article 51. He conceded that his interpretation did ‘not get any support from international lawyers, except from Professor Arthur Goodhart’,20 the Master of University College, Oxford. Goodhart had been Oxford’s professor of jurisprudence from 1931 to 1951 and, over the years, had shown himself—primarily through his work 16

Lord Kilmuir, Desk Diary 1956, 26 July entry, Kilmuir papers, Churchill Archives Centre, Churchill College, Cambridge, GBR/0014/ KLMR 1/5. 17 P Catterall (ed), The Macmillan Diaries: The Cabinet Years, 1950–1957 (London, Macmillan, 2003) 591–92. 18 Cabinet minutes CM (56) 62nd Conclusions, 28 Aug 1956, National Archives, CAB 128/30/286, pt II, p 527. 19 Kilmuir, Political Adventure (n 3) 268. 20 ibid.

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as principal notes contributor for the Law Quarterly Review (which he edited between 1926 and 1971)—to be knowledgeable about most major legal topics, though he was primarily a common lawyer. On 11 August 1956, The Times published a letter from Goodhart in which he protested that ‘[t]he argument that foreign property can be nationalized arbitrarily because it is necessary to augment the national income’—Nasser’s argument— ‘will, if accepted, destroy the good faith on which all international commercial relations must be based’.21 Furthermore, Goodhart continued, the claim ‘that under modern international law force must never be used’ when nationalization is undertaken in this way ‘cannot be accepted’, since international law establishes that ‘a State may … use force to protect a vital national interest which has been imperilled’.22 Kilmuir was sufficiently impressed with this letter—the opinion of an eminent legal authority who also happened to be American—to quote it (specifically, the point about States being permitted to use force to protect vital and imperilled national interests) to the Cabinet at its meeting of 28 August. The Lord Chancellor, the minutes record, said that … [i]t had been well stated by Professor Goodhart, in a letter published in The Times on 11 August, that there was no foundation for the view that under modern international law force might be used only to repel a direct territorial attack. A State might properly use force to protect a vital national interest which had been imperilled; and in such a case it was the State which had altered the status quo which was guilty of aggression.23 21

AL Goodhart, ‘Legal, Political, and Moral Aspects of the Suez Canal Crisis’, The Times 11 Aug 1956, p 7. 22 ibid. 23 Cabinet minutes CM (56) 62nd Conclusions, 28 Aug 1956, National Archives, CAB 128/30/286, pt II, p 527.

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At the end of 1956, Goodhart wrote a detailed paper reflecting on Suez and asking whether the Franco-British intervention really had been justifiable. Even with the dust having settled, he maintained, he could see no reason to depart from the stance he had taken in August. To argue that … Egypt was legally entitled to seize control of the Canal by the technical expedient of nationalizing a company which was registered in Egypt is to sacrifice substance entirely to form. International law has, however, always refused to do this…. There was every justification … for the protests registered … against … the Egyptian government.24

There was, in short, every reason to conclude ‘that the Franco-British intervention was both legally and morally justified’.25 On completing the paper, Goodhart sent a copy to Kilmuir.26 On receiving the paper, Kilmuir purred at its content.27 Goodhart seemed to be as unrepentant a defender of Franco-British action as he was. Yet Goodhart would waver. ‘It cannot be disputed’, he remarked in a paper delivered at Johns Hopkins in August 1957, ‘that from the standpoint of international law every nation has the right to nationalize the companies it has created unless there is some special reason that

24

AL Goodhart, ‘Was the Anglo-French Intervention at Suez Justified?’, typescript dated 18 Dec 1956, in Arthur Lehman Goodhart papers, Bodleian Library (Special Collections), MS Eng c 3051 ff 219–41 at 225. 25 ibid 240. 26 Eventually published as AL Goodhart, ‘Grounds for Action at Suez’ (1957) 7 Optima 4. The passages quoted from the typescript appear in the published version (at pp 8 and 12) unaltered. 27 ‘Thank you very much for … the copy of your article on Suez. It was most cheering for me to receive your considered view which is a brilliant and formidable buttress of our action. For my own part, I can only say that I would do the same again’. Lord Kilmuir to A Goodhart, 21 Dec 1956, in Goodhart papers, MS Eng c 2887 f 53.

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may negative such a right’.28 Did any such special reasons apply to Nasser’s nationalization of the Suez Canal Company? In the previous year, he had answered this question unequivocally: of course there were special reasons. But now his answer was that perhaps there were. ‘To hold that … the Egyptian government was entitled to wipe out the company and seize all of its assets’, Goodhart maintained, ‘is to disregard all considerations except the technical one that the company was necessarily incorporated in Egypt’29—considerations such as that an Egyptianmaintained Suez Canal might ‘deteriorate to a disastrous degree’, and that Nasser might ‘demand … extortionate tolls’.30 Quincy Wright, former President of the American Society of International Law, responded bluntly: the only relevant consideration was what Goodhart termed the technical one. ‘Surely it is a prerogative of a state to use force to maintain its law within its territory. Such a normal exercise of sovereignty is not an armed attack against another state and cannot justify an invasion by another state’.31 Not that Goodhart himself thought that taking account of considerations such as the possibility of Egyptian mismanagement and exorbitant levies made matters clearer: ‘could force be used to dislodge [Nasser] if he refused to accept reasonable terms? … The question has not been finally settled’.32 In August 1956, Goodhart was resolutely of the view that Britain and France could 28

AL Goodhart, ‘Some Legal Aspects of the Suez Situation’ in PW Thayer (ed), Tensions in the Middle East (Baltimore, Johns Hopkins Press, 1958) 243–59 at 255–56. 29 ibid 257. 30 ibid 258. 31 Q Wright, ‘Commentary’ in Thayer (ed), Tensions in the Middle East (n 28) 260–72 at 263 (emphasis in original). See also L UngoedThomas, ‘Landings in Egypt’, The Times 6 Nov 1956, p 11. 32 Goodhart, ‘Some Legal Aspects of the Suez Situation’ (n 28) 258–59.

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justifiably use force against Egypt. A year later, his view was that it was unclear whether the Anglo-French invasion of Suez amounted to an unjustifiable use of force, but that it was a sorry state of affairs if it did.33 The evolution of Goodhart’s argument between 1956 and 1957 hardly constituted a sea change. But evolution there was. Kilmuir, by contrast, stuck to his familiar strategy of settling on a position and holding to it resolutely. In August 1956, the Legal Advisor to the Foreign Office, Sir Gerald Fitzmaurice, wrote to the Permanent UnderSecretary of State for Foreign Affairs protesting that intervention in Egypt would ‘be … a serious mistake for which we shall pay heavily in the future’.34 His prescience contrasts markedly with Kilmuir’s assessment, offered some eight years later, that ‘in another ten years no one will be able to understand how anyone could think otherwise’ than that intervening was the correct course of action.35 A study of papers held at the National Archives has shown that Fitzmaurice’s advice to the British government concerning the legality of Suez was candid and analytical—and completely ignored.36 The suggestion, made to Anthony Eden on 16 October, that he involve Fitzmaurice in an ad hoc consultation on Suez ‘was met with the flattest of negatives. “Fitz is the last person I want consulted,” Eden retorted. “The lawyers are always against our doing anything. For God’s sake, keep them out of it. 33

‘It is not certain how the United Nations can continue to be effective if it insists that so impractical a doctrine is an essential part of its existence’ (ibid 259). 34 G Fitzmaurice to I Kirkpatrick, 31 Aug 1956, National Archives, FO 800/748. 35 Kilmuir, Political Adventure (n 3) 268. 36 G Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government’ (1988) 37 ICLQ 773.

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This is a political affair”’.37 Eden wanted to hear only one piece of legal advice: that armed intervention against Egypt constituted justified use of force. Kilmuir was the trusted and regular provider of that advice.38 In his speech to the House of Lords on 12 September, he came out all guns blazing: not only was ‘the action of President Nasser in purporting to nationalise the Suez Canal Company … a flagrant breach of International Law’39—‘a clear case of an illegal attempt to alter the status of an international waterway’40—but the suggestion ‘that the Company is a purely Egyptian Company and that the nationalisation is no different from the nationalisation of a domestic industry in Britain’ was ‘entirely fallacious…. It is true that the Company is registered in Egypt, but that does not make it solely or exclusively an Egyptian company’.41 Much of the content of Kilmuir’s speech had been supplied by Goodhart42 (before Goodhart had begun to finesse his argument). In the days preceding the speech, Fitzmaurice had sought to influence Kilmuir’s thinking, though—since Kilmuir considered Fitzmaurice’s position

37

Nutting, No End of a Lesson (n 8) 95. And he maintained, in later years, that he was ‘unrepentant’ for having been so (Political Adventure (n 3) 278), though it seems clear that Suez left him somewhat bruised: see Lord Kilmuir, Desk Diary 1956, 19 Nov entry, Kilmuir papers, GBR/0014/KLMR 1/5 (‘There was an Egypt Committee in the afternoon at which we considered how we should deal with the incoming UN forces, with the cloud over us as to whether the UN forces would be adequate and whether arrangements would be made for the clearance of the Canal. I came away extremely depressed’). 39 HL Deb 12 Sept 1956, vol 199, col 705. 40 ibid, col 712. 41 ibid, col 707. See also Kilmuir, Political Adventure (n 3) 273. 42 See Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis’ (n 36) 778–79. 38

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to be ‘to the country’s disadvantage’43—it is hardly surprising that his effort should have come to naught. On 6 September, Fitzmaurice wrote to Sir George Coldstream, Permanent Secretary to the Lord Chancellor’s Department, requesting that he draw [the] attention … of the Lord Chancellor [sc., Kilmuir] to the fact that … [i]f we attacked Egypt solely on the ground that the nationalization of the Canal is illegal … we should … be committing … a breach of the United Nations Charter…. It would in fact be a simple act of aggression.44

‘[F]rom his recollections of the Nuremberg Tribunal’, Fitzmaurice added, Kilmuir would ‘know within what very narrow limits the doctrine of necessity [ie selfdefence] affords a legal justification for the use of force’, and indeed must be ‘one of the few persons who is in a position to appreciate’ that ‘we do not seem to have anything approaching the sort of case which would bring us within the doctrine’.45 Kilmuir appreciated nothing of the sort: ‘[s]ome people have talked as if Britain were only standing for a national right or interest situated in Egypt’, he is reported to have told an audience in Manchester on 22 September. ‘The position is very far from that. We are taking our stand for the protection of a great landmark of international agreement established for the benefit of mankind and enshrined in solemn international undertakings’.46 Fitzmaurice made further efforts

43 Lord Kilmuir, Desk Diary 1956, 31 July entry, Kilmuir papers, GBR/0014/KLMR 1/5. 44 G Fitzmaurice to G Coldstream, 6 Sept 1956, National Archives, FO 800/747 (emphasis in original). 45 ibid. 46 Anon, ‘Lord Kilmuir Defines “Britain’s Duty” in Suez Dispute’, The Times 24 Sept 1956, p 5.

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to prompt Kilmuir to rethink, every one of which fell on stony ground.47 Fitzmaurice was not a lone voice. Lord McNair—a former holder of the Whewell chair of international law at Cambridge and, from 1952 to 1955, President of the International Court of Justice—objected in the House of Lords, and privately to Kilmuir, in similarly candid terms. In the lords he begged the Government to reflect upon my attempt to state the present rules governing the threat and the use of force, and to examine and to check it. If they come to the conclusion that I have stated those rules correctly, I think they are also bound to come to the conclusion which I have reached, which is as follows: that so far as the events in the present controversy up to date are known to us, I am unable to see the legal justification of the threat or the use of armed force by Great Britain against Egypt in order to impose a solution of this dispute.48

Kilmuir, soon after addressing the lords on 12 September, sought the opinions of the Attorney-General and the Solicitor-General on the question of whether the use of armed force against Egypt could be legally justified. Their joint response concluded unequivocally: ‘[i]t cannot, in 47 See L Johnman, ‘Playing the Role of a Cassandra: Sir Gerald Fitzmaurice, Senior Legal Advisor to the Foreign Office’ (1999) 12 Contemporary British History 46, 54–56; also Marston (n 36) 788–91. 48 HL Deb 12 Sept 1956, vol 199, col 662 (Lord McNair). And see Kilmuir, Desk Diary 1956, 1 Nov entry, Kilmuir papers, GBR/0014/ KLMR 1/5 (‘[House of Lords speech] went well [but] I did not convince Arnold MacNair [sic]’); McNair to Kilmuir, 4 Nov 1956, National Archives, LO 2/825; also McNair, ‘Landings in Egypt’, The Times 6 Nov 1956, p 11 (‘I remain unconvinced by the Lord Chancellor’s argument. In my opinion the action taken by our Government last week, and still continuing, in relation to the hostilities between Egypt and Israel is illegal. In the event of the matter coming before a legal tribunal my view is that we must expect to see judgment given decisively against us’).

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our opinion, be said that Egypt has so far committed any act which would justify the use or threat of force by the United Kingdom in self-defence’.49 In a separate letter, the Attorney-General reiterated that the only force used by Nasser up to date was in relation to the seizure of the Canal Company’s property in Egypt. We do not think that the use of that force would now justify the use of force by us.50

Kilmuir was undeterred. ‘I am a great believer’, he replied on 15 October, ‘in the fact that International Law is dynamic’, and so allows for ‘the extension of the doctrine of self-defence to the preservation of the international character of territory by those for whose benefit it was given its international character’.51 Whereas his defence of the Nuremberg tribunal against the charge of applying ex post facto laws was premised on the assertion that some ‘principles of international law’ have been settled since time out of mind, his defence of the legality of the Suez invasion started from the proposition that international law was in flux. The latter manoeuvre, no less than the former, was pure seek-and-you-shall-find: look closely enough, Kilmuir was saying, and it should become clear that the rules have evolved to accommodate the preferred solution. But where was Kilmuir looking? In his reply of 15 October, and in a memorandum prepared a few days later

49 R Manningham-Buller and Sir H Hylton-Foster, ‘Memorandum: The Law Relating to Recourse to War and the Threat or Use of Force’, 12 Oct 1956, National Archives, LCO 2/5760. 50 R Manningham-Buller to Lord Kilmuir, 12 Oct 1956, National Archives, LCO 2/5760. 51 Lord Kilmuir, memorandum to the Law Officers, 15 Oct 1956, National Archives, LO 2/825.

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and lodged with the Prime Minister’s Private Secretary,52 Kilmuir cited a scholarly essay as authority for his argument that the doctrine of self-defence could now be understood to permit military intervention of the kind that Britain was about to take in relation to Egypt. In this instance, Kilmuir relied not on Goodhart but on CHM Waldock, then Chichele professor of international law at Oxford. ‘Logic would suggest that if very valuable foreign property was in danger of irreparable injury through the breakdown of law and order’, Waldock had written in 1952, ‘entry by the foreign State for the sole purpose of securing the safety of the property might be excusable’.53 Kilmuir seized on this statement: ‘if we could shew (as I think we could) that the blocking of the Canal for a considerable period would probably cause damage to a number of nations for which it would be difficult to see adequate compensation being given’—if it is accepted that the Suez Canal Company is a very valuable foreign property which is in danger of irreparable injury in the event of Nasser seizing control of it—‘then our intervention … could be justified by the danger to the Canal’.54 In his speech to the lords on 1 November Kilmuir sought, without mentioning Waldock’s essay, to use the statement to his advantage: It has been argued that there is a great distinction between the protection of human lives and the protection of property. That is not a proposition to which I would give absolute

52

Lord Kilmuir, ‘Suez Canal—Memorandum by the Lord Chancellor on the use of force and question of consultation with the Law Officers’, 21 Oct 1956, National Archives, PREM 11/1129. 53 CHM Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952) 81 Hague Recueil 451, 503 fn 1 (emphasis in original). 54 Kilmuir, ‘Suez Canal—Memorandum by the Lord Chancellor on the use of force’ (n 52).

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concurrence. I take the view that if really valuable and internationally important foreign property is in danger of irreparable injury, through the breakdown of order, entry by a foreign State for the sole purpose of securing the safety of that property is excusable…. We have … three good grounds of intervention: the danger to our nationals …; the danger to shipping in the Canal, which shipping carries many hundreds, at least, if not thousands, of people in their crews; and the danger to the enormously valuable installations of the Canal itself and the incalculable consequential effect on many nations if the Canal were blocked.55

Those familiar with the intricacies of the research assessment ordeals to which UK universities are nowadays periodically subjected will recognize Waldock’s essay to be an example of—to use the modern jargon— underpinning research which has had impact beyond academia. The essay had impact, however, because it was misinterpreted. Waldock argued more diffidently, and set the bar for justifiable self-defence somewhat higher, than Kilmuir did. The statement on which Kilmuir had seized is put forward by Waldock in a footnote, and is intended to bolster the claim, made in his main text, that ‘the distinction between protection of property and life is not absolutely logical’.56 Waldock was evidently not fully committed to the argument that State intervention into foreign territory is excusable (‘[l]ogic would suggest’ that it ‘might be excusable’) if very valuable property is in danger of being irreparably damaged. Moreover, when one works outwards from the footnote (and the sentence containing it) to Waldock’s broader argument, it becomes

55

HL Deb 1 Nov 1956, vol 199, cols 1349–50. Waldock, ‘The Regulation of the Use of Force by Individual States’ (n 53) 503. 56

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clear that the circumstances in which he thought selfdefence might justifiably be raised are not quite those of the Suez intervention. ‘[W]hen troops enter a foreign country … in the course of action taken in self-defence’, he observes, ‘the [International] Court [of Justice] seems to have given an emphatic warning that the right of selfdefence is to be narrowly interpreted’;57 a ‘determining factor’, when deciding whether this right is available, seems always to be ‘the humanitarian consideration’—‘the instant and overwhelming need of action to save the life [sic] of [the invading country’s] nationals’.58 Though Waldock himself was of ‘the tentative opinion that the general principle of self-protection’—in accordance with customary international law—‘remains untouched by the [UN] Charter’, he considered it beyond doubt that ‘only cases of extreme urgency to prevent irreparable injury could justify the introduction of troops into foreign territory’.59 A case of extreme urgency would be one where ‘law and order had completely broken down’ in the foreign territory and where one’s own nationals based in that territory were ‘faced with almost certain death and serious injury’: intervention, in this case, would be ‘justified … for the sole purpose of securing the safe removal of nationals. Even then the permission of the local government

57

ibid 502. ibid 503. 59 ibid. Cf Kilmuir’s assertion—HL Deb 1 Nov 1956, vol 199, col 1352—that ‘[i]t would be an entire misreading of the whole intention of Article 51 to interpret it as forbidding forcible self-defence in resistance to an illegal use of force not constituting an armed attack…. [I]t is equally clear that Article 51 does not cut down the customary right by restricting forcible self-defence in cases where the attack provoking it has actually been launched’. 58

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ought if possible to have been sought’.60 Law and order had not completely broken down at Suez. British nationals were not facing certain death or serious injury, and the object of intervening was not solely to ensure the safe removal of nationals. The permission of the local government was certainly not being sought. Kilmuir’s argument was not Waldock’s.61

60 Waldock ‘The Regulation of the Use of Force by Individual States’ (n 53) 503. 61 See also G Fitzmaurice, minute to I Kirkpatrick (legal standing of Anglo-French action on Suez), 1 Nov 1956, National Archives, FO 371/123680 (‘From talks which I have had in the past with Professor Waldock about the legitimacy of the use of force, I know he would not accept the interpretation which has been placed on his article’).

VI Judicial Independence Kilmuir selectively and rather cavalierly relied on academic literature concerning Article 51 so as to make the case that international law had, ever so conveniently, evolved so as to fit with his argument for military intervention over Suez. It was quite some sleight of hand. But the Attorney-General and the Solicitor-General were disappointed not so much with Kilmuir’s interpretation of international law principles and scholarship as with what they considered to be his casual attitude towards the separation of powers. Eden’s government acted in accordance with Kilmuir’s advice. Kilmuir, as Lord Chancellor, sat in Cabinet with a host of roles, the main ones being government minister, head of the judiciary and presiding officer of the House of Lords (‘the personified contradiction’, as Kilmuir himself put it, ‘of Montesquieu’s theory of the separation of powers’).1 Legal advisor to the government, however, was not one of his roles; that was the official function of the Law Officers (principally, the AttorneyGeneral with the assistance of the Solicitor-General). The Law Officers’ advice regarding the Suez intervention had not been followed, yet it would be assumed that their advice supported the decision to send forces to Egypt. 1

Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 234. See also Lord Kilmuir, ‘The Office of Lord Chancellor’ (1955) 9 Parliamentary Affairs 132, 138.

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Fitzmaurice wrote to the Permanent Under-Secretary of State for Foreign Affairs on 5 November pointing out that senior legal advisors were considering whether they should tender their resignations: [t]hroughout the Suez crisis, the task of the legal advisers … has been rendered almost impossibly difficult by the fact that the Cabinet and the Prime Minister were proceeding independently on the basis of private advice tendered by the Lord Chancellor.2

Two days later, the Attorney-General added his voice, in effect chastising the Prime Minister for snubbing the Law Officers and for following Kilmuir’s incautious, wrongheaded and constitutionally unwarranted advice regarding the use of force: it would … be desirable if steps could be taken to ensure that the Law Officers do not again find themselves in a position of acute embarrassment through inability to support statements made on the Government’s behalf in legal matters on which the Law Officers have not been consulted, though constitutionally they are the legal advisers of the Government.3

There is some irony in the fact that Kilmuir’s contribution to the Suez crisis should have been criticized in this way, for he himself, in other contexts, was not averse to issuing the occasional reminder about the appropriate functions of the different offices of state. The argument that the line dividing legislative and executive functions had become blurred in mid-twentieth century Britain, and that the rule of law was being undermined as a consequence, was, he insisted, understandable but

2

G Fitzmaurice, minute to I Kirkpatrick (basis for action in Suez Canal Crisis), 5 Nov 1956, National Archives, FO 800/749. 3 R Manningham-Buller to A Eden, 7 Nov 1956, National Archives, PREM 11/1129.

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unsound. The line had indeed become somewhat blurred; but the ill effects of this blurring were satisfactorily combated by a Parliament with supreme legislative power— parliamentary sovereignty he considered a simple matter of fact—and an independent judiciary. ‘In Great Britain’, Maxwell Fyfe (as he then was) observed in 1949, ‘the separation between the legislative power … and the judicial power … has been carefully preserved’.4 Parliament ‘is supreme’—it ‘may make or change any law as it pleases’—and ‘[w]hen once a judge has ascertained the law which governs an issue, he has no choice but to apply it’.5 But did not talk of Parliament’s supreme law-making function put the matter too strongly? After all, ‘the courts have evolved a system of law independent of that enacted by Parliament’;6 furthermore, Parliament not only ‘operates at the command of the executive’7 but also sometimes legislates so as to delegate to the executive (‘under the authority of Parliament but not always subject to Parliamentary scrutiny’) the power ‘to issue regulations, within strict limits, which have the force of law’.8 Neither of these arguments convinced him. To think of the courts as having a common law power to control statutes and adjudge them void—Sir Edward Coke’s argument in Bonham’s case9—only makes sense, he asserted (assertion seems to 4 D Maxwell Fyfe, ‘The British Courts and Parliament: The Judiciary in the British Constitution’ (1949) 35 American Bar Association Journal 373, 373. 5 ibid. 6 ibid. 7 ibid. 8 ibid 374. 9 ‘[W]hen an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void’. Dr Bonham’s Case (1610) 8 Co Rep 107a, 118a.

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be the sum of it), so long as one understands this controlling power to relate to statutes as bills rather than as enacted law: ‘[i]n Great Britain we have an omnicompetent Parliament and the Courts are bound by an Act of Parliament even if it conflicts with the Common Law Rights of the individual’; these common law rights can only ‘affect the statute when it is a Bill passing through the House, and when members of all parties … seek to secure that there will be no infringement of these rights’.10 Those— Maxwell Fyfe most likely had in mind Lord Hewart’s The New Despotism11—who considered the logical consequences of delegated law-making authority to be ‘general uncertainty as to what the law on any particular subject is’, as well as uncertainty as to ‘how far the rights of … the executive go’,12 certainly had a point.13 But Maxwell Fyfe held back from adopting this position as his own. The decisions of government agencies to which Parliament has delegated law-making authority will not only be reviewed ‘according to the rules of natural justice’ but also—if those decisions fall ‘outside the powers conferred by Parliament’—‘will be quashed by the courts’.14 While government agencies are no doubt ‘potentially dangerous’, and ‘must be closely watched’, ‘[t]he citizen’s protection lies in the watchfulness of Parliament and in the

10 Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 12. 11 Lord Hewart, The New Despotism (London, Benn, 1929). 12 Maxwell Fyfe, ‘The British Courts and Parliament’ (n 4) 374. 13 ‘[C]onsiderable weight in [the Conservative Party’s] propaganda effort will be devoted to educating the electorate to the fact that the legal structure of a totalitarian dictatorship is already in print in the form of emergency legislation’. D Maxwell Fyfe, ‘Delegated Legislation’, typescript (1948) p 14, in Kilmuir papers, GBR/0014/KLMR acc 1485, box 6, file 4. 14 Maxwell Fyfe, ‘The British Courts and Parliament’ (n 4) 374.

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independence of’ a judiciary which is intent on ensuring ‘that officials enjoy no immunity from legal process’.15 The rule of law, he believed, will prevail in the end.16 A. THE KILMUIR RULES

Kilmuir, as Lord Chancellor, was not expected to patrol the border between the legislature and the executive.17 But keeping the judiciary independent from these two branches was very much integral to his remit. ‘If a judge is 15 ibid. See also Lord Kilmuir, ‘Individual Freedom under an Unwritten Constitution’ (1959) 45 Virginia Law Review 629, 641–42 (‘There is no more fruitful source of interference with individual liberty than legislation by regulations which have statutory force yet which have not received the full examination of Parliament. The only remedy is a vigilant jealousy of its rights on the part of Parliament and the use of all pieces of its machinery to assert control. This must be accompanied by a readiness on the part of the courts to examine whether vires have been exceeded or used in bad faith. Our Parliament is at the moment awake. It must never slumber’). 16 See also Lord Kilmuir, ‘The State, the Citizen and the Law’ (1957) 73 LQR 172, 177 (‘[W]here possible, … disputes [between the State and the individual] should be decided according to law rather than administrative policy. Being an administrator myself I know how inconvenient this can be, but it is worth it’), 179 (‘[W]hat really matters is that those who have to decide between the State and the citizen … should wish to decide justly and according to law’). 17 Though as Lord Chancellor he established—and (see HL Deb 27 Nov 1957, vol 206, col 592) endorsed the findings of—the Franks Committee on Administrative Tribunals. After Franks had reported, furthermore, he introduced the bill which culminated in the Tribunals and Inquiries Act 1958, which set up a permanent, independent council to monitor administrative tribunals and procedures and to report on their activities to parliament. See Lord Kilmuir, ‘Reforms in the Law and the Legal System of England; A Six-Year View from the Woolsack’ (excerpt from speech) (1960) 9 University of Chicago Law School Record 34; also Kilmuir, ‘Individual Freedom under an Unwritten Constitution’ (n 15) 643; Political Adventure (n 1) 301.

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to be truly independent’, he had declared a propos of the Hungarian show-trial for József Mindszenty in 1949, ‘he must … be free from all consideration of politics or personal obligations or loyalties, and in dispensing justice he must have regard to nothing except the law’.18 In July 1955, he made his own low-key contribution to the maintenance of this dimension of the separation of powers doctrine by spelling out, in a letter to the head of a public institution, a convention which until that point had been only tacitly accepted in British public life: that judges ought to steer clear of the media.19 The admonition, commonly and rather perplexingly referred to as ‘the Kilmuir rules’, was prompted by the Director General of the BBC writing to seek Kilmuir’s approval to schedule a series of radio lectures about great judges of the past. Kilmuir, after consulting with members of the senior judiciary, poured 18 D Maxwell Fyfe, ‘The Legal Aspects of the Mindszenty Trial’ in N Boer, Cardinal Mindszenty and the Implacable War of Communism against Religion and the Spirit (London, BUE Ltd, 1949) 317–36 at 327. 19 The convention was certainly already accepted. Only a year earlier Kilmuir’s predecessor, Simonds LC, had castigated Lloyd-Jacob J for writing a decidedly muddled letter to the editor of The Times lamenting ‘the fearsome destructive power of atomic missiles’ yet also urging the government ‘to promote international agreement, whereby the signatories pledged themselves to punish, by atomic retaliation, the first country to loose [the hydrogen bomb] on another’. GH LloydJacob, ‘Toward Lasting Peace: Case for Pledge on Retaliation’, The Times 11 May 1954, p 9. ‘A judge ought not to express his views in public on matters which are either political or controversial’, Simonds wrote to Lloyd-Jacob, ‘and the subject matter of your letter is both. In my opinion it was a breach of your duty as a judge to write the letter’. Lord Simonds, LC to GH Lloyd-Jacob, 18 May 1954, National Archives, LCO 2/5923. Lloyd-Jacob readily accepted the rebuke: GH Lloyd-Jacob to Lord Simonds, LC, 19 May 1954, National Archives, LCO 2/5923 (‘to know that I have caused you embarrassment and worry is a wretched burden’).

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cold water on the plan.20 No doubt, he replied, there are some special instances, ‘for example charitable appeals’, where it may be acceptable for ‘members of the Judiciary to broadcast on the wireless or to appear on television’.21 But it is ‘inappropriate’ for judges ‘to be associated with any series of talks or anything which could be fairly interpreted as entertainment’ (and they must ‘in no circumstances, of course, … take a fee in connection with a broadcast’), for any such initiative risks compromising judicial independence. [T]he overriding consideration, in the opinion of myself and of my colleagues, is the importance of keeping the Judiciary in this country insulated from the controversies of the day. So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.22

Within days of becoming Lord Chancellor in 1987, Lord Mackay consigned Kilmuir’s letter to the past,23 reasoning that judicial independence demands that judges be able to comment in public as they see fit, without having 20

Kilmuir to Sir I Jacob, 12 Dec 1955, repr at [1986] Public Law 383. ibid 385. 22 ibid. See also Kilmuir, The Commonwealth Statesman in International Politics (n 10) 12–13. 23 See anon, ‘Independence, the Media and Civil Justice Reform’, Law Society Gazette 11 Nov 1987, p 12 (‘At his first full press conference since his appointment, … Lord Mackay questioned the relevance today of the 1955 Kilmuir Rules…. The Kilmuir Rules, said Lord Mackay, were made for their time, and there was now, he felt, room for change. “I believe judges should decide themselves what to do”’); also J Rozenberg, ‘The Kilmuir Rules KO’d’, The Guardian 21 July 1989, p 34. On the judiciary’s adaptation to the post-Kilmuir rules era, see K Malleson, The New Judiciary: The Effects of Expansion and Activism (Aldershot, Ashgate, 1999) 190–96. 21

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to worry about the Lord Chancellor looking over their shoulders: they ‘should have the judgment’, as he put it in his 1993 Hamlyn Lectures, ‘to decide such matters for themselves’.24 Kilmuir, in fact, had thought no differently: he conceded in his letter to the Director General that he had ‘no sort of disciplinary jurisdiction over Her Majesty’s Judges, each of whom, if asked to broadcast, would have to decide for himself whether he considered it compatible with his office to accept’.25 It seems fanciful—notwithstanding the type of language that commentators have used—to suggest that anyone has ever seriously believed that Kilmuir was trying to ‘gag’26 judges or ‘ban the judiciary from speaking to the media’.27 Be24

Lord Mackay, The Administration of Justice (London, Stevens & Co, 1993) 26; and see also House of Lords Select Committee on Constitution, 6th Report of Session 2006–07: Relations between the executive, the judiciary and Parliament (HL 2006–07, 151) minutes of evidence (examination of witnesses), 24 Jan 2007, question 171, at www.publications.parliament.uk/pa/ld200607/ldselect/ ldconst/151/7012402.htm (Lord Mackay) (‘I remain entirely convinced that it was completely right to get rid of the Kilmuir rules and I say that, not just because I did it but because I think the principles underlying it are absolutely undeniable. Judges are supposed to be independent, and independent of the Lord Chancellor when he was head of the judiciary, as much as of any other judge. The idea that the Lord Chancellor’s consent should be required before a judge is entitled to express a view to the media seemed to me to be utterly inconsistent with that’). 25 Kilmuir to Jacob (n 20) 385. 26 J Pickles, Judge for Yourself (London, Smith Gryphon, 1992) 173. 27 HL Deb 5 June 1996, vol 572, col 1256 (Lord Irvine). But Irvine adds that the content of Kilmuir’s letter ‘had no statutory basis’ (ibid 1257). Pickles, likewise, seemed to appreciate that talk of Kilmuir seeking to gag judges was, in reality, hyperbolic: see Judge for Yourself (n 26) 166 (‘the Rules provided a voluntary code’). Circuit judges—of which Pickles was one—could, nonetheless, be removed from office by the Lord Chancellor (though nowadays only with the agreement of the Lord Chief Justice) on the ground of incapacity or misbehaviour: Courts Act 1971, s 17(4); also Constitutional Reform Act 2005, ss 15, 148, sch 4 para 68.

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tween 1955 and 1987, judges quite regularly engaged in public commentary—sometimes ex cathedra, and, when doing so without the Lord Chancellor’s approval, more often than not without incurring censure for having done so.28 Kilmuir accepted that he could not be immune to his own stricture: a Lord Chancellor must be careful. He is a judge and must not therefore express, obiter, opinions … which he may have to eat on the Bench…. If he commits himself to any particular view he is almost bound to offend himself in one or other of his capacities.29

Yet this did not inhibit him, during his time on the Woolsack, from giving public lectures, contributing to law journals, even making the occasional radio broadcast, on a range of legal and political issues.30 The point is not that he behaved hypocritically. The point, rather, is that his letter to the Director General, far from laying down an edict, was simply putting a case for safety first.31

28

For examples, see Lord Hope, What Happens When the Judge Speaks Out? (Birmingham, Holdsworth Club, 2010) 10–11; also GR Rubin, ‘Judicial Free Speech versus Judicial Neutrality in MidTwentieth Century England: The Last Hurrah for the Ancien Régime?’ (2009) 29 Law and History Review 373, 393–401. 29 Lord Kilmuir, The Law of Parliamentary Privilege (London, Athlone Press, 1959) 5. 30 Along with various texts already cited in this study, see eg Lord Kilmuir, ‘The Future of the Commercial Court’ [1961] Journal of Business Law 8; ‘The Lord Chancellor’s Broadcast: The Law in the Changing Commonwealth’ (1960) 36 New Zealand Law Journal 204; ‘Law Reform’ (1957) ns 4 Journal of the Society of Public Teachers of Law 75. 31 Though the judiciary certainly heeded the letter: Lord Woolf recalls that, before it received its quietus in 1987, judges took the letter to mean ‘that before engaging in public discussion, which would include discussion with the media, the[y] … should obtain the consent of the Lord Chancellor…. It made life easy for the judiciary. If approached by a reporter, no matter how interesting the subject, they had a simple answer, “not allowed to contribute without the

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Not that the case was especially well made. Modern commentators, many of them judges, have tended to treat the letter as a fusty and fundamentally misconceived period piece.32 That they should see it this way is perfectly understandable. It is baffling that Kilmuir and his consultees should have clammed up as they did in the face of a request to broadcast programmes about, of all topics, great judges of the past: to have offered one’s reflections on this topic would hardly have been to risk becoming embroiled in ‘the controversies of the day’. Even if it were true to say that the judiciary over which Kilmuir presided was ‘insulated’ from these controversies—something which would require judges to forgo consuming as well as contributing to the fare that the media put out—it does not follow that the only way in which judges might tamper with the seal is by making statements in public: judges, after all, can speak their minds—and the media will sometimes report on how they speak their minds—in court. The notion that judges of Kilmuir’s era were somehow insulated, and to be kept so, was nonsense. A judge—Kilmuir is a case in point33—might have contributed regularly to public

Lord Chancellor’s consent” and the media was well aware the consent was unlikely to be forthcoming in practice so this was the end of the discussion’. Lord Woolf, ‘Should the Media and the Judiciary be on Speaking Terms?’ (2003) in C Campbell-Holt (ed), The Pursuit of Justice (Oxford, Oxford University Press, 2008) 149–59 at 157. 32

See eg Lord Neuberger, ‘Where Angels Fear to Tread’, Holdsworth Club Presidential Address, 2 March 2012, at www.judiciary. gov.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speechholdsworth-lecture-2012.pdf, 2–6; Justice K Mason, ‘Should Judges Speak Out?’ Judicial Conference of Australia Colloquium, Uluru, NT, 9 April 2001, at www.lawlink.nsw.gov.au/lawlink/supreme_court/ ll_sc.nsf/vwPrint1/SCO_speech_mason_090401). 33 Likewise, among his contemporaries, Lords Dilhorne, Hailsham and Somervell.

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affairs, may even have had a high-profile political career, before taking judicial office; entering a vow of silence on moving to the bench would hardly make that past go away. The fact that one has never expressed controversial opinions, furthermore, does not mean that one is without them. Kilmuir seemed concerned not with keeping the judiciary insulated from the controversies of the day but with keeping up appearances: judges should avoid doing anything that creates the impression of them being, even if the reality is that they are, engagé. B. THE CASE FOR A SPECIAL COURT

In his letter, Kilmuir pronounced loftily on the importance of the judge’s reputation for wisdom and impartiality remaining unassailable. But was he committed to this sentiment? Certainly in his previous life as David Maxwell Fyfe, he had shown himself willing to take risks with judicial independence if the risks could solve political problems. In 1948, he proposed the creation of a ‘Restrictive Practices Commission’ with specific responsibility for handling claims against companies alleged to be benefiting from monopolies and other restrictive trade arrangements.34 His proposal eventually came to fruition with the enactment of the Restrictive Trade Practices Act 1956, though the episode was not without controversy. Since the idea of a government-administered commission proved ‘unpopular with industry’,35 it would be better, Maxwell Fyfe thought, if whatever tribunal

34 See D Maxwell Fyfe, Monopoly (London, Conservative Political Centre, 1948) 51–52. 35 Kilmuir, Political Adventure (n 1) 261.

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was established were headed by a judge.36 But he also appreciated that a judge put in charge of this tribunal might come to be regarded as a political—pro- or antiindustry—figure.37 He initially considered the solution to this difficulty to be to appoint judges to the tribunal for limited terms.38 But this solution met with the objection that, whatever the length of the tenure, these judges, being heads of a panel which was expected to support government policy on matters of trade competition, would in effect have ‘to descend into the arena of public affairs’.39 Some of the judges who were eligible to be selected for this task took precisely this view.40 But not all of them took this view. Patrick Devlin wrote to Kilmuir (as he now was) making it clear that he would ‘welcome the decision that issues of great importance between the Government and individuals should be determined by the High Court [of which the proposed restrictive practices tribunal would be a part]’.41 The Federation of British Industry likewise wanted Kilmuir to

36

See anon, ‘Court’s Powers in Monopoly Bill: Lord Kilmuir on Points of Fact’, The Times 10 March 1956, p 3. 37 See Kilmuir, Political Adventure (n 1) 262. He was not always in favour of specialist tribunals being headed by judges: see eg ibid 48. 38 D Maxwell Fyfe (Home Secretary), memorandum to Lord Simonds, LC, 16 Jan 1952, National Archives, LCO 2/5904 (‘I was attracted by the suggestion of seconding a judge for a limited period. I entirely appreciate the difficulties of that period being long’). 39 Sir G Coldstream (Deputy Permanent Secretary to the Lord Chancellor’s Department) to Lord Simonds, LC, 17 Jan 1952, National Archives, LCO 2/5904. 40 See R Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (Oxford, Oxford University Press, 1993) 106–07. 41 Mr Justice Devlin to Lord Kilmuir, LC, 7 March 1956, National Archives, LCO 2/6242.

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stick with his original plan to establish a special tribunal headed by a judge.42 Faced with opposing camps, Kilmuir sided with Devlin and the Federation43—the Restrictive Practices Court began hearing cases in April 1958 (with a right of appeal to the Court of Appeal and the House of Lords on points of law).44 He explained his decision in his memoirs. Scottish he may have been, but he had been trained ‘[a]s a common lawyer’45 and was of the opinion that the best legal changes tended to be those which came about courtesy of ‘the great tradition of the English Common Law’.46 But the common law could not always be left to develop unaided. Since, ‘in a modern State’,47 the law provides a ‘vital social service’,48 the legislature had a responsibility to ensure that what, in the mid-twentieth

42

See Stevens, The Independence of the Judiciary (n 40) 106. ‘A difficulty is felt that under the [Restrictive Trade Practices] Bill the Government are placing on the Court a task which will take judges outside the ordinary realm of judicial activity and involve them in applying economic and value judgments in which they are not trained. I am most anxious to make it clear that I have given careful consideration to this point and I have come to the conclusion that the questions at issue are not inappropriate for judicial determination within the framework laid down in the Bill…. The Government do not deny that some element of economic judgment will be demanded of the Court, and that in this way it will be a mixed one, and the expertise and experience of practical affairs of the lay members will contribute to its judgments’. HL Deb, 26 June 1956, vol 198, cols 18–19. 44 See Kilmuir, Political Adventure (n 1) 262–63, also 74, 300. 45 ibid 69. 46 ibid 99–100; also Kilmuir, ‘Law Reform’ (n 30) 75–76 (‘I think … we, in this country, have always preferred evolutionary and not revolutionary processes…. Organic growth aided now and again by pruning and grafting is generally to be preferred to complete uprooting and replanting’). 47 Kilmuir, Political Adventure (n 1) 303. 48 ibid 304. 43

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century, were expanding realms of grievance49 were dealt with by appropriate tribunals. This meant that Parliament would sometimes do best to enact rules expanding the domain of the common law—by determining, for example, that emerging areas of dispute not currently justiciable in the courts would be so from now onwards. ‘[T]he law itself … must be apt to meet the changing circumstances and changing needs of society’.50 This necessitates ‘an occasional legal spring-clean’51—by, for example, altering the jurisdiction of the courts—so that ‘new parts’ of the legal machinery are ‘substituted for old, new techniques applied, and old assumptions reconsidered’.52 Extending the scope of the common law by statutorily affirming the judge’s responsibility for adjudicating allegations of anticompetitive practice is simply welcome spring-cleaning: ‘the law should not be regarded as a treasured antique, to be taken down, admired, and replaced exactly as before. It must play its part in the modern scientific State’.53

49

Elsewhere, Kilmuir cited as primary examples workers’ compensation, obligations as between landlord and tenant, litigation against nationalized corporations, disputes between employers and trades unions and the compulsory acquisition of private land by the State. Lord Kilmuir, ‘The State, the Citizen and the Law’ (n 16) 173–77. 50 Kilmuir, Political Adventure (n 1) 298. 51 ibid 299. 52 ibid 298. 53 ibid 263.

VII Kilmuir as Judge The quotation which ends the last chapter—extolling law’s capacity to change with society—shows Kilmuir playing one of his favourite cards. ‘The law … is like an old but still vigorous tree’, its ‘function … constantly changing’, he remarked in 1957; it enables ‘the State’ to ‘develop and regulate … the social system which it desires…. [A]s the social problems of the day are constantly changing, the law must adapt itself to meet them’.1 The sentiment was repeated regularly.2 When Kilmuir was backed into 1 Lord Kilmuir, ‘The State, the Citizen and the Law’ (1957) 73 LQR 172, 173. 2 See eg HL Deb 26 July 1956, vol 199, col 350 (‘I believe that the law, although deeply rooted in the history of the institutions of our country, is not an heirloom which is to be taken down, dusted, reverently considered and placed back. I believe that the law is as effective a dynamic force in modern problems as it is soundly based on these historical roots. Therefore, I believe that the law should be brought in to help in the solution of the great problems of a modern State’); Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 14 (‘The law has … been a living assistance to new as well as existing problems. Nothing could be worse than that rules of law should be regarded merely as heirlooms to be taken down from a lofty shelf, dusted, and replaced’). Though cf the distinctly non-organicist claim, made early in his career, that ‘[i]t is of the greatest importance to the lawyer as well as to the law of England, that books on law should constitute not only a repository of information, but a complete picture of the law on the subject in which its strengths and weaknesses appear’. D Maxwell Fyfe, ‘Introduction’ in G Abrahams, The Law Affecting Police and Public (London, Sweet & Maxwell, 1938) iii–vi, at iv.

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a corner over the legality of the Suez intervention, we saw earlier, he defended Britain’s action by claiming that because international law is a dynamic phenomenon, it can be read to have evolved so as to incorporate a doctrine of self-defence which extended to Eden’s decision to use force against Egypt. Yet we also witnessed Kilmuir seeking to defend the legality of the Nuremberg trials by taking a declaratory theorist’s position on customary international law. In the one context he sounded like Roscoe Pound, in the other like William Blackstone (or even Ronald Dworkin). Small wonder that commentators have struggled to make sense of his conception of law. According to one legal historian, ‘his judicial approach is difficult to classify’: though ‘not as philosophically conservative’ as some of his contemporaries on the bench, he was no ‘judicial activist’3 and would have considered the proposition that ‘Judges do every day make law’ to have been ‘unwelcome, if not positively distasteful’.4 According to another, Kilmuir indeed ‘fits into no clear category’;5 nevertheless, he clearly disliked judicial ‘pedantry and formalism’, and insisted that ‘law and the courts … extend their responsibilities’6 to deal with new problems confronting the modern State, and so deserves ‘considerable … credit for shaking off judicial catatonia’7 and ‘the complacency of the [midtwentieth century legal] system’.8 3

GR Rubin, ‘Judicial Free Speech versus Judicial Neutrality in MidTwentieth Century England: The Last Hurrah for the Ancien Régime?’ (2009) 29 Law and History Review 373, 380. 4 ibid 387. 5 R Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (Chapel Hill, NC, University of North Carolina Press, 1978) 425. 6 ibid 424. 7 ibid 421. 8 ibid 425.

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Yet he was not, as a legal thinker, quite the enigma that these differing assessments suggest. It is certainly easy to reconcile Kilmuir the organicist with Kilmuir the declaratory theorist: there is no contradiction in claiming, on the one hand, that law is prone to change and, on the other, that some parts of the law remain more or less constant (if not necessarily easily discernible) and that the judge who appears to be making new law may in fact be recalling and applying some extant—though possibly distorted or overlooked—rule or doctrine. Nor is there any reason to think that Kilmuir would have recoiled at the proposition that judges make law: ‘I am glad that Judges have by extending old rules to new sets of circumstances produced what were, in effect, new rules’,9 he observed in 1960—an observation which he did nothing to contradict when sitting as a judge himself.10 The consequences of his sitting as a judge need not detain us for long. Kilmuir was an important figure within 9 Lord Kilmuir, ‘Judicial Qualities’ (1960) 36 New Zealand Law Journal 112, 113. (The statement would seem to be intended as an endorsement of something which he recognized to be a core judicial function (see HL Deb 2 May 1957, vol 203, col 272): distinguishing precedent. But as a description of distinguishing it is inaccurate, because when judges distinguish a precedent they determine that the precedent does not extend to the facts of the case to be decided.) See also Lord Kilmuir, ‘Foreword’ in NA Citrine, Trade Union Law, 2nd edn (London, Stevens & Sons, 1960) vii–viii at vii (commending the House of Lords’ decision—in Bonsor v Musicians’ Union [1956] AC 104—‘to establish as a general principle that a registered union is capable of entering into contracts and of suing and being sued for breach’ as an ‘important step in judge-made law’); D Maxwell Fyfe ‘Address [on “Scottish Influences on the English Bar”]’ [1954] Canadian Bar Association Yearbook 140, 152 (‘Atkin … and … Mansfield … as ministers of justice … saw themselves … unrestricted by formal rules but buoyed up and inspired by a great tradition. And it is as ministers of justice that I would commend them to you’). 10 See eg Pound & Co Ltd v Hardy & Co [1956] AC 588, 601–05.

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the judiciary rather than an important judicial figure. Between 1954 and 1963 he was responsible for approximately 85 per cent of the appointments to higher judicial office in England.11 He was neither snobbish nor dismissive in his dealings with judges from Commonwealth countries (this could not be said of all the senior English judiciary of his day),12 and he argued vigorously—though, like others before him, ultimately unsuccessfully—for the establishment of a peripatetic Judicial Committee of the Privy Council.13 He revised the rules on judges’ pensions, introduced an age-limit of seventy-five for English judicial appointments (applied prospectively from 1959),14 and, behind the scenes, showed the legal fixer’s instinct for defusing judicial spats and controversies.15 But, as was observed at the beginning of chapter one, he was rarely involved in deciding cases. Had he the time, he claimed, he would have sat as a judge more often.16 That he participated only rarely in the 11 See Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 303; RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 174. Kilmuir’s zealousness in appointing judges, and particularly his penchant for appointing QCs as judges, was criticized in the press as gung-ho: see R Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (Oxford, Oxford University Press, 1993) 82. 12 See Stevens, ibid 156–57. 13 ibid 154–60. 14 See Kilmuir, Political Adventure (n 11) 302. 15 See D Woodhouse, The Office of Lord Chancellor (Oxford, Hart, 2001) 29; Heuston, Lives of the Lord Chancellors 1940–1970 (n 11) 174; G Hogan, ‘Holmes and Denning: Two 20th Century Legal Icons Compared’ (2007) 42 Irish Jurist 119, 120. Likewise regarding commonwealth judicial difficulties, see eg Stevens (n 11) 140–42, 144–45 fn 42. 16 Kilmuir, Political Adventure (n 11) 298. As a Lord Chancellor little involved in the lords’ judicial work, Kilmuir is by no means unique. Lord Irvine heard only nine appeals during his six years on the

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lords’ judicial work means that there is little courtroom output to assess; his opinions have their moments, but there is barely anything to write home about. He seemed more likely—whether this would have been any different over a longer judicial career we cannot know—to treat an appeal to the court of last resort as an opportunity to affirm established law rather than to re-evaluate legal principles.17 ‘The abiding impression’, according to one commentator, ‘is that of a judge who was simply uninterested in the development of legal concepts by analytical reasoning’.18 This is perhaps a little harsh. In one of the two criminal law decisions Kilmuir contributed to, Bratty v A-G for Northern Ireland, he carefully distinguished the defence of non-insane automatism from that of insanity (whereby, under the M’Naghten Rules, the legal burden of proof rests with the defence), pithily explaining the House’s ruling: that the defence of non-insane automatism must be

Woolsack; Lord Gardiner, who also served for six years, heard only three. On Irvine, see T Bingham, ‘The Old Order Changeth’ (2006) 122 LQR 211, 217–18. On Gardiner, see Heuston (n 11) 220. 17 See eg McWilliams v Arrol & Co [1962] 1 WLR 295, in which the House of Lords held that employers who had failed to provide a safety harness to an employee who had made it clear that he would not wear the harness if it had been provided could not be in breach of their statutory duty, for there had to be not only a breach of duty but also a causal connection between the breach and the injury. According to Kilmuir, ‘[t]he necessity, in actions by employees against their employers on grounds of negligence, of establishing not only the breach of duty but also the causal connection between the breach and the injury complained of is, in my view, part of the law of both England and Scotland’ (ibid 299). In employment law cases he was content to see some decisions delegated to industrial tribunals, though he emphasized that delegation must be subject to ultra vires principles: Vine v National Dock Labour Board [1957] AC 488, 498–501. 18 Heuston (n 11) 175.

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accompanied by medical evidence showing that the defendant was unaware of what they were doing, and that, so long as this evidence is forthcoming, the burden is on the prosecution to prove beyond reasonable doubt that the defendant acted intentionally.19 In South of Scotland Electricity Board v British Oxygen Co, he presented a painstakingly researched and intricately reasoned opinion showing why price discrimination against consumers is not to be understood as if it were a zero-sum activity: in order to establish that it has been discriminated against by virtue of the imposition of a tariff, he emphasized, a class of people does not have to show that another class of persons has been accorded preferential treatment (ie ‘that someone else is preferred in price’).20 Analytical legal reasoning was not anathema to him. Nor was Kilmuir entirely without contours when it came to statutory interpretation. As might be expected, he took it for granted that the ‘basic task’ of courts when interpreting statutes is ‘to find the natural meaning’ of the language Parliament enacted.21 In IRC v Hinchy, the House of Lords had to determine whether the penalty imposed for

19

Bratty v A-G for Northern Ireland [1963] AC 386, 408. It is worth noting also that Kilmuir’s interpretation (at bill stage) of the Homicide Act 1957, s 3 (concerning whether the action which provoked the defendant was enough to make a reasonable person lose control in the way that the defendant did) has been strongly defended against judicial criticism: see T Macklem and J Gardner, ‘Compassion without Respect? Nine Fallacies in R v Smith’ [2001] Crim L Rev 623, 632–33. 20 South of Scotland Electricity Board v British Oxygen Co Ltd [1959] 1 WLR 587, 592. 21 Re Hynd’s (No 1) [1955] SC (HL) 1, 8. See also Mortimer v Allison [1959] 1 WLR 330, 334 (the relevant statutory language ‘must be given its ordinary meaning’); and Perpetual Trustee Co Ltd v Pacific Coal Co Ltd [1956] AC 165 (Kilmuir delivering the judgment of the Privy Council).

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failure to complete a tax return under section 25(3) of the Income Tax Act 1952—a fixed penalty plus ‘treble the tax which [the payee] ought to be charged under the Act’— should be based on the total amount of tax that had been due or only on the portion which had been unpaid. Kilmuir thought that the meaning of the statutory language was plain: defaulting taxpayers, even those who had already paid some of the tax that they owed, were liable to pay triple their original bill; to read section 25(3) any other way, one would have to add words to the statute. He was in no doubt as to the wrongness of interpolating so: ‘to add the necessary words would … be legislation and not [statutory] construction…. [T]he words [used in section 25(3)] must bear their ordinary meaning’.22 Equitable statutory construction—not ‘reading the book’, that is, but instead ‘looking in the crystal’23 to try to ascertain what the legislature might have been willing to see accommodated within the text it enacted—was, he insisted, always off limits: while interpretations which give effect to ‘common sense and the intention of the Act’ are perfectly acceptable,24 ‘to construe [statutory language] on the basis of the state of affairs which [the interpreter] thought the draftsman must have contemplated … is … “supplying [ie filling] a gap”’.25 He conceded, nevertheless, that judges may have legitimate differences of opinion over statutory

22

IRC v Hinchy [1960] AC 748, 762. Verdin v Coughtrie [1961] AC 880, 894. 24 Wigley v British Vinegars Ltd [1964] AC 307, 324. 25 Canadian Pacific Steamships Ltd v Bryers [1958] AC 485, 498–99 (emphasis added); and see also Cade v British Transport Commission [1959] AC 256, 266 (‘If that had been the intention of the rule-making authority I cannot think that the rule would have been drawn in its existing form’). 23

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interpretation,26 and was himself willing to place strained interpretations on ‘clear words’ if consideration of the text in its entirety made the prioritization of a secondary meaning permissible.27 While Kilmuir did not entirely shy away from analytical reasoning, his efforts to deal with difficult points of doctrine were, as often as not, unimpressive. On a plain meaning interpretation, he observed in Arbuckle Smith v Greenock Corporation, the term ‘actual occupation’ means occupation of land in fact rather than as a matter of right (‘de facto occupation as opposed to de jure occupation’).28 However, as Lord Reid intimated in the same case, to define ‘actual occupation’ in this way is to dilute the legal concept unduly: one could, on this definition, have the legal status of actual occupier simply by having, and taking advantage of, a bare or contractual permission to be on the relevant land.29 In Lyle v Rosher, Kilmuir sought 26

‘Of course it is true that one Judge may form a view of a particular application [of a statute] which would not be shared by another Judge. But, of course, that is no new thing; it is a matter of constant occurrence whenever judicial discretion is involved; and long may it continue! A system of law in which judicial discretion is going to be confined and will not result in differences … is completely out of accord with the traditions of English justice and English legal development’. HL Deb 12 June 1958, vol 209, col 852. 27 See Ross’s Judicial Factor v Martin (No 3) [1955] SC (HL) 56, 61. He also disapproved of litigants relying on literal interpretations of contractual terms to escape their obligations: Renton & Co Ltd v Palmyra Trading Corp [1957] AC 149, 164. 28 Arbuckle Smith & Co Ltd v Greenock Corp [1960] AC 813, 821. 29 ibid 824. The case turned on the Local Government (Scotland) Act 1947, s 379(1), which defines an ‘occupier’ as a tenant or sub-tenant or someone ‘in the actual occupation of land’. In the English law of land registration ‘actual occupation’, to qualify as an interest which overrides the Land Register (ie an interest binding on all disponees irrespective of registration), has traditionally been defined as the fact of occupation coupled with a property right held by the occupier in

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to limit the much-criticized rule in Dearle v Hall so that it could not be applied to resolve a priority dispute in favour of a claimant if the person who sought to transfer to the claimant the equitable interest in the asset giving rise to the dispute did not, at the point of the transfer, hold an equitable interest in the asset himself.30 ‘The limit which I have tried to indicate does not’, he claimed, ‘conflict with any previous authority’.31 But Kilmuir omitted to consider at least one authority applying the rule to claimants neither of whom could have received from the transferor a beneficial interest in the asset at the time that the transferor sought to transfer an interest to them.32 In Lyle, Lords Morton and Reid dealt with the same matter of law far more confidently, reaching the same conclusion as Kilmuir did—that the rule in Dearle v Hall was inapplicable—but showing how one could get to that conclusion by relying on simpler and more obvious reasoning and without having to worry about previous authorities.33 the burdened land: see eg Land Registration Act 1925, s 70(1)(g) (‘The rights of every person in actual occupation of the land’). In delivering his opinion, Reid took account of the fact that ‘[i]n England there is a wealth of authority’ (albeit ‘not always consistent’), whereas in Scotland ‘[t]here is singularly little authority … on the meaning of occupation’ (Arbuckle Smith v Greenock Corp, 824). The differences and similarities between the two sets of law, Kilmuir thought, did not ‘place any real difficulty in the way of the view which I have formed’ (ibid 822). 30 Lyle v Rosher [1959] 1 WLR 8, 14–15. (The rule in Dearle v Hall (1828) 3 Russ 1: when an owner of an asset has in effect transferred his beneficial interest in the asset to two or more disponees so that only one of the disponee’s claims to the interest can be satisfied, priority is to be given to the claim of the first disponee to bring his beneficial entitlement to the attention of the owner of the asset.) 31 Lyle v Rosher, ibid 14. 32 Re Dallas [1904] 2 Ch 385. 33 See Lyle v Rosher (n 30) 16 per Lord Morton (‘[T]he rule … applies where an individual … having a beneficial interest … executes two or

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Lawyers, Kilmuir thought, tended to overestimate the significance of intention in the law: ‘intention’, he remarked in 1956, ‘and certainly what I may call the “conscious element” in intention, is no more than one [legal] factor and its importance is not overriding’.34 Casualness about intention is very much evident in DPP v Smith, the second of the two criminal law cases to which Kilmuir contributed.35 Smith is remembered, perhaps not entirely fairly, as a case in which the House of Lords made a spectacular mess of the criminal law.36 To place the blame for more successive equitable assignments of … that interest in favour of different persons. In these circumstances questions of priority arise. But no question of priority can arise in the present case, where the bankrupt has merely executed two wholly ineffective charges, both in favour of the same party’) and 19 per Lord Reid (‘The present case differs from such a typical case in two respects. First, the assignor, the bankrupt, never had any beneficial right in the funds which he purported to assign to the appellants; the title of the respondents to those funds flowed not from him but from the deed of appointment. And secondly, the right of the respondents, which is the earlier in date, arose not from an assignment but from the creation of a trust in their favour’). 34

London CC v Wilkins [1957] AC 362, 374. (The case was decided in July 1956.) 35 DPP v Smith [1961] AC 290. 36 While the decision was ‘not satisfactory’, Lord Goff remarked, we should not be quick to pass over the fact ‘that a very distinguished and experienced group of judges felt that Smith could be held guilty of the crime of murder, even if he did not in fact intend to kill his victim or to cause him grievous bodily harm. Such a judicial reaction is not lightly to be disregarded’. R Goff, ‘The Mental Element in the Crime of Murder’ (1988) 104 LQR 30 at 59, 36 (emphases in original). For a defence of some elements of the decision (particularly the House of Lords’ definition of serious bodily harm), see Heuston (n 11) 175–76. (The decision did not come entirely out of the blue: the court of Criminal Appeal had already held in R v Ward [1956] 2 WLR 423 that a person is presumed to intend what is reasonably foreseeable as a natural consequence of his acts.)

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this mess specifically on Kilmuir would be uncharitable: he was a signatory to, rather than the author of, the sole judgment in the case (the judgment was in fact drafted by Lord Parker, the Lord Chief Justice, who was sitting as a supernumerary law lord).37 But it was Kilmuir who delivered the judgment, and who insisted that in this instance the law lords speak as one.38 In Smith the accused, who was trying to escape with stolen property, sought to shake a police officer off the car the accused was driving by swerving from side to side. Eventually, the officer fell off the car into oncoming traffic and sustained fatal injuries. The accused had driven directly at three of the oncoming cars, each of which was damaged by impact with the officer’s body (which in effect formed a fender between the accused’s car and the vehicles which were struck). But the accused insisted, when cautioned, that he had not intended to kill the officer. The trial court brought in a verdict of capital murder. The Court of Criminal Appeal substituted manslaughter on the basis that the trial judge had failed to explain to the jury that the verdict had to be based on the actual state of mind of the accused. The House of Lords then reinstated the murder verdict. Kilmuir, speaking for the House, observed that the problem with the Court of Criminal Appeal’s ‘purely subjective approach’ was ‘that if an accused said that he did not in fact think of the consequences, and the jury considered that that might well be true, he would be entitled to be acquitted of murder’.39 37

See L Blom-Cooper and G Drewry, ‘Towards a System of Administrative Law: The Reid and Wilberforce Era, 1945–82’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009) 209–31 at 212–13. 38 See A Paterson, The Law Lords (London, Macmillan, 1982) 93, 184. 39 DPP v Smith (n 35) 326–27.

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[T]he proposition has only to be stated thus to make one realise what a departure it is from that upon which the courts have always acted. The jury must, of course, in such a case as the present make up their minds on the evidence whether the accused was unlawfully and voluntarily doing something to someone. The unlawful and voluntary act must clearly be aimed at someone in order to eliminate cases of negligence or of careless or dangerous driving. Once, however, the jury are satisfied as to that, it matters not what the accused in fact contemplated as the probable result or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions…. [T]he sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result. That, indeed, has always been the law40

It is not necessary, in other words, to prove that the accused actually intended to kill or to cause serious bodily harm. The test of criminal fault in murder cases, rather, is whether a reasonable person would conclude from the evidence that death or serious injury was the natural and probable consequence of the accused’s action, in which case the death or serious injury was to be regarded as having been caused intentionally. The House of Lords was explicitly taking the lead of Oliver Wendell Holmes and treating the principles of criminal and civil liability as if they were all of a piece.41 40

ibid 327. See ibid 327–28, and cf OW Holmes, The Common Law (Cambridge, Mass, Belknap Press, 2009 [1881]) 50–51 (‘If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not’). 41

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Leading criminal lawyers were quick to express their despair at the judgment.42 After Smith, all that was necessary to establish the mental element for murder was evidence that the accused intended to undertake an unlawful act which, whether the accused realized it or not, was likely to cause death or serious injury: whenever the victim died, there would automatically be a case of murder. An Australian judge, Wilfred Fullagar, reportedly quipped that he had heard that the English were now ‘hanging men for manslaughter’.43 His addressee reacted to the news rather more gravely. ‘Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here’, Owen Dixon remarked in the Australian High Court in 1963, but having carefully studied Smith’s Case … I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept.44

Parliament restored the subjective approach to English law in 1967.45 42 G Williams, ‘Constructive Malice Revived’ (1960) 23 MLR 605; JC Smith, ‘Case and Comment: DPP v Smith’ [1960] Crim L Rev 765. (Though the case did not appear in the Appeal Cases until 1961, it was decided in July 1960 and reported at [1960] 3 WLR 546 and [1960] 3 All ER 161.) 43 As quoted by P Ayres, Owen Dixon: A Biography (Carlton, Vic, Miegunyah Press, 2003) 276. 44 Parker v R [1963] HCA 14 at [17]. 45 Criminal Justice Act 1967, s 8 (‘A court or jury, in determining whether a person has committed an offence … shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions … but … shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the

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Smith is generally remembered as a poor decision, and since Kilmuir delivered the judgment—and delivered no other legal judgments of note—it takes only a short step to conclude that he must therefore have been a poor judge. But the better conclusion is that he was barely a judge at all. He participated in very few cases, and in all of those in which he did have a hand—Smith included—other judges were doing most if not all of the heavy lifting. A study of Kilmuir qua lawyer-statesman cannot ignore his contribution to the lords’ judicial work, but it would be uncharitable to accord much significance to that work when assessing his career and legacy.

evidence as appear proper in the circumstances’). See also R v Moloney [1985] AC 905, 921 per Lord Bridge (‘[T]he decision [in Smith] was never popular with the profession. It is said to have been widely disregarded by trial judges, directing juries in murder cases, until it was eventually overruled by section 8’).

VIII End of an Era In one of the few cases he heard, Kilmuir suggested that when a disputed legal document is but one of an interconnected collection of legal documents, and the relevant clause within the disputed document is worded ambiguously, one does best to interpret that clause in relation to the wider documentation of which it forms a part.1 Hardly an unusual suggestion. But with it came a demonstration: Kilmuir’s opinion leaves one in no doubt that he had read all the documentation relevant to the case. This, as we know from ground already covered in this study, was Kilmuir playing to one of his strengths; if anyone could be trusted to put in the long hours sifting through masses of turgid paperwork and finding the relevant passages, it was he. His opinions also reveal a talent for running an efficient courtroom: regularly he is reported as interrupting counsel to tell them to stick to the relevant facts.2 But diligence and efficiency, though desirable judicial qualities, cannot by themselves make for strong appellate decision-making. As a politician, Kilmuir showed himself 1 Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352, 353–58. 2 See Wigley v British Vinegars [1964] AC 307, 318; Renton & Co v Palmyra Trading Corp [1957] AC 149, 156; Vine v National Dock Labour Board [1957] AC 488, 497; Canadian Pacific Steamships v Bryers [1958] AC 485, 493; Cade v British Transport Commission [1959] AC 256, 263; and Australian Mutual Provident Society v IRC [1962] AC 135, 145.

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to be adept at getting to the nub of a problem and articulating a clear, sometimes almost code-like (which does not necessarily mean satisfactory) solution to it—the socalled ‘Kilmuir rules’ are illustrative in this regard.3 And while it would be an overstatement to claim that he was unprincipled, his judgments are nonetheless very much those of someone who thought, as he clearly often did in a political capacity, that compromising on principles does not always have to be a bad attribute in a decision-maker.4 As one of the great British judges of the modern era put it, he was, at heart, ‘that most terrestrial of politicians’.5 To think of Kilmuir as someone who lacked convictions or sincerity, however, would be to misunderstand him. Nor would it be correct to infer that was he unwilling to think seriously about political or legal dilemmas—his refusal to commute the death penalty in Derek Bentley’s case, for example, was not (whatever one might think of his decision) one which he took lightly. Rather, his principal shortcoming, both as a politician and as a lawyer, was to extol obvious, commonsense solutions—what, in

3 As is his typology of the different situations in which ministers can be held responsible to Parliament for the actions of civil servants: see HC Deb 20 July 1954, vol 530, cols 1285–87. 4 His willingness to have a judge head a restrictive practices tribunal, notwithstanding his letter to the Director General of the BBC about the importance of keeping the judiciary insulated from the controversies of the day, is illustrative, though his career offers up many other instances: eg as Home Secretary he accepted a proposal that Scotland be allowed to account for its revenue and expenditure separately from the rest of the United Kingdom, but he resisted claims that the same right be extended to Wales since he believed the extension would impose too high an administrative cost on the government: D Maxwell Fyfe to HT Edwards, 5 Nov 1952, in Huw T Edwards papers, National Library of Wales, Aberystwyth, MS A1/122. 5 TH Bingham, ‘The European Convention on Human Rights: Time to Incorporate’ (1993) 109 LQR 390, 393.

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one of his judgments, he termed ‘the perennial attraction of rugged simplicity’6—while not always recognizing the distinction between the obvious and commonsense and the simplistic and superficial. Kilmuir was prone, frankly, to taking simplistic and superficial (though not necessarily consistent) approaches to problems. For all his emphasis on how law provides ‘a vital social service’,7 and how it can be ‘adapted’ to ‘fulfil … new function[s]’8 in ‘the changing conditions of the modern world’,9 his account of how the law actually does adapt was but a statement of the obvious: legislatures add to, subtract from and amend the stock of existing rules, and judges develop the common law. (On the matter of where the law should adapt to deal with social change, he was remarkably selective: he was, as we have seen, opposed to changes to the law dealing with homosexual acts; and he was similarly unenthusiastic about seeing the law changed to tackle racial discrimination.)10 What Kilmuir wrote was very often intended not for readers but for listeners, who, he insisted, do not want the ‘rhythmic flow’ and ‘growing effect of a speech’

6

London CC v Wilkins [1957] AC 362, 370. Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 304. 8 Lord Kilmuir, ‘The State, the Citizen and the Law’ (1957) 73 LQR 172, 180. 9 HL Deb 3 May 1956, vol 197, col 180; also T Buck, ‘Change Laws When Needed, Briton Urges’, Chicago Daily Tribune 1 May 1960, p 12. 10 See HL Deb 14 May 1962, vol 240, col 519 (‘[T]he problem of racial discrimination is basically one of personal human relationships, always a delicate matter and particularly so when a large number of people come here from countries with different climates and economic and social backgrounds. Legislation could not, in itself, prevent discrimination on the part of individuals in their private dealings with coloured people…. In the Government’s view, this problem is not solvable by legislation’). 7

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interrupted by ‘some jejune and ill-constructed phrase’.11 But passages from Kilmuir’s texts which may well have stirred audiences can seem insubstantial, even platitudinous, on the page: ‘A parliamentary democracy can function only if both those who vote and those who legislate can really understand the issues which confront them’; ‘the expert must learn to impart his knowledge to the layman’; as a foreign dignitary, one should have ‘a reasonable acquaintance with the history of the countries whose citizens one is going to meet’; ‘a democratic statesman … must have imagination plus … foresight … to show how his policy will affect his own and other peoples’.12 It is difficult, with much of what Kilmuir had to say, to see how anyone might be moved to disagree. ‘During the [Second World] war and for some time afterwards’, one British constitutional historian has written, many British lawyers and politicians considered it axiomatic that, whatever the shortcomings of this or that government, they would be corrected in good time by the combined gumption of people and Parliament. The character of the British people buttressed and sandbagged any weak points there might be in our constitutional defences.13

The description captures precisely Kilmuir’s attitude to Britain’s legal arrangements. In his post-War legal addresses, the abiding message is that while nobody would deny that the legal system could be made to work better, all will turn out well so long as a close-knit profession (something which Kilmuir thought very obviously

11

D Maxwell Fyfe, ‘The Use and Abuse of Words’ (Summer 1950) Phoenix 3, 5. 12 Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 16, 17, 20, 37. 13 F Mount, The British Constitution Now: Recovery or Decline? (London, Mandarin, 1992) 23–24.

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existed)14 continues to work hard and to approach reform challenges constructively, and so long as the public maintains its faith in lawyers. For the most part, ‘the machinery is not inadequate’—‘the record of achievements in law reform is one we need not be ashamed of’—and where there is still work to be done we can be confident that ‘[l]awyers of the right calibre’ have matters in hand.15 The rules of parliamentary privilege are open to abuse, Kilmuir acknowledged in 1959, but he was ‘not unduly alarmed, because … there are very real and substantial safeguards’, not least in the form of Parliament’s desire to maintain ‘its own reputation for honest and fair dealing’.16 During his time as Lord Chancellor, he worked hard to ensure that legal aid was extended to all the regular courts.17 Certainly the system of legal aid is not ‘perfect’, 14 See eg Lord Kilmuir, ‘Judicial Qualities’ (1960) 36 New Zealand Law Journal 112, 112; The Commonwealth Statesman in International Politics (n 12) 19 (‘there is an instinctive brotherhood of the law’); ‘The Inns of Court and the Impact on the Legal Profession in England’ (1950) 4 Southwestern Law Journal 391, 396 (‘The easy companionship of the bar … [is] a direct product of that communal hierarchy among equals which is the pride of the Inns of Court’); D Maxwell Fyfe, ‘Foreword to the Second Edition’ in GJ Webber, The Effect of War on Contracts, 2nd edn (London, Solicitors’ Law Stationery Society, 1946) vii–ix at ix (‘professor, practitioner and judge co-operate’). 15 Lord Kilmuir, ‘Law Reform’ (1957) ns 4 Journal of the Society of Public Teachers of Law 75, 77, 83, 85. 16 Lord Kilmuir, The Law of Parliamentary Privilege (London, Athlone Press, 1959), 22. See also Lord Kilmuir, ‘Crown Privilege’ (1956) 32 New Zealand Law Journal 263; HL Deb 6 June 1956, vol 197, cols 741–47 (Lord Kilmuir). 17 See A Sampson, Anatomy of Britain (London, Hodder & Stoughton, 1962) 157–58 (Kilmuir to Sampson: ‘I’ve tried to improve the law on two main principles. The first is that courts must meet the public need: the one basis of democracy, in the end, is that a man can say with confidence either that “I’ll sue you” or “Sue me and be damned”—the machinery of the law must make this possible. The second is that the law must be within easy reach of everyone…. I’ve tried to … see that legal aid is extended to all the regular courts’).

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he conceded in 1956, but if provincial law society members devote ‘long hours’ and ‘a tremendous amount of work’ to the running of the service, ‘the money … granted to the Legal Aid Fund will be well spent’.18 His message: trust not only the legal system but also those who oversee it, for their ‘standards of conduct’19 are ‘intrinsically sound’,20 ‘a worthy basis of world confidence’.21 (One can only wonder if his sanguine outlook on legal aid would have survived the cuts to funding which came into force in April 2013.)22 This somewhat unflattering assessment of Kilmuir’s opinions on law and legal officials is hardly counteracted by an account of his final years. The position of Lord Chancellor, he noted, is ‘transient and temporary’23—a typical Kilmuir truism—and if ‘there is insistence’ from the Prime Minister ‘that one must go’, one can only hope that ‘politics has … given [one] a thick skin’.24 The circumstances of his own departure from office would have stung even the toughest of hides. When, at the end of June 1962, the Prime Minister’s Office declined his request to

18 Lord Kilmuir, ‘Legal Aid in the County Court: Past Experience as a Guide to Future Undertakings’, Law Society Gazette Jan 1956, pp 5–6. See also Lord Kilmuir, ‘Foreword’ in E Stephens (ed), The Clerks of the Counties 1360-1960 (Warwick, Society of Clerks of the Peace of Counties and of Clerks of County Councils, 1961) xi–xiv at xiii–xiv. 19 Kilmuir, The Commonwealth Statesman in International Politics (n 12) 7. 20 ibid 22. 21 ibid 7. 22 Legal Aid, Sentencing and Punishment of Offenders Act 2012. On the effects of which, see F Wilmot-Smith, ‘Necessity or Ideology?’ London Review of Books 6 Nov 2014, pp 15–17. 23 HL Deb 26 July 1956, vol 199, col 350. 24 Kilmuir, The Commonwealth Statesman in International Politics (n 12) 31.

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plan trips abroad in the autumn and early the following year on the basis that they would interfere with his involvement in government business, he inferred that he would be in post as Lord Chancellor at least until early 1963.25 But the Prime Minister, Harold Macmillan, dismissed him (and six other members of his Cabinet) in the middle of July 1962—the infamous ‘Night of the LongKnives’. Macmillan would later claim that he removed Kilmuir simply because he was not very adept as a Lord Chancellor,26 though his explanations to Kilmuir were, first, that a radical reconstruction of the government was necessary in order to revive flagging Conservative fortunes,27 and, secondly, that he thought it only fair that the Attorney-General, Reginald Manningham-Buller, should have a stint on the Woolsack.28 Whatever Macmillan’s true reasons, Kilmuir—who learned of his dismissal only seven hours before the announcement29—considered himself harshly treated.30 Macmillan was probably right to call time as he did. By the early 1960s, Kilmuir thought the Conservative Party

25 See Lord Kilmuir, Political Adventure (n 7) 255; also K Alderman, ‘Harold Macmillan’s “Night of the Long Knives”’ (1992) 6 Contemporary Record 243, 255. 26 See A Horne, Macmillan 1894–1986: Volume II of the Official Biography (London, Macmillan, 1989) 346. 27 See Alderman, ‘Harold Macmillan’s “Night of the Long Knives”’ (n 25) 252. 28 See RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 177–78. 29 See Alderman (n 25) 251. 30 ‘I got the impression that [Macmillan] was extremely alarmed about his own position, and was determined to eliminate any risk for himself by a massive change of Government. It astonished me that a man who had kept his head under the most severe stresses and strains should lose both nerve and judgment in this way’. Kilmuir, Political Adventure (n 7) 324.

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was losing, if it had not already lost, its way. Ministers, he complained, had developed ‘a too-dominant preoccupation with administrative matters’, had become ‘far too obsessed with their own work’, and had been unable ‘to find a popular non-materialistic policy for the party’.31 By the autumn of 1962 he had cut his ties with the Conservatives and accepted a position on the board of the British electronics company, Plessey.32 This was not the fresh start he might have hoped for. The appointment—which attracted protests in the commons from MPs who objected to someone who once held high judicial office accepting a post as an ‘adviser of big business’33—did not particularly suit him: his health was failing,34 and he apparently found 31

See ibid 320–21. He became chairman of the board the following year. On the Plessey boardroom during Kilmuir’s tenure, see Hugh Culverhouse, ‘A résumé of the history of Plessey’, at https://sites.google.com/site/ plesseyaddlestonereunion/plessey-company-history. The company was acquired by GEC Siemens in 1989. 33 HC Deb 20 Nov 1962, vol 667, col 1000 (Mr Roy Mason). Macmillan replied that he thought Kilmuir’s acceptance of the Plessey post (for which Kilmuir had relinquished his judicial pension) was not only ‘perfectly proper’ but also ‘desirable and beneficial to the country’ (ibid, cols 1003, 1000). See also anon, ‘“Attack” on Lord Kilmuir Irks Mr Macmillan’, The Times 21 Nov 1962, p 12. 34 Possibly his marriage, too. ‘Family life’, Kilmuir observes in the last paragraph of his memoirs, ‘is grievously affected’ by a political career (Political Adventure (n 7) 328). His wife, Sylvia, was a Conservative Party activist in her own right (she was also the sister of the film star, Rex Harrison). Kilmuir and Sylvia had three daughters, the eldest of whom, Lalage, was killed in a bicycle accident in her early twenties. Lalage’s death goes unmentioned in Political Adventure, though Kilmuir does report that in 1944, the year that she died, he ‘had a different committee meeting every night of the week when [he] came out of Court’ (ibid 73). This was certainly not something he would have confessed as a matter of pride: fathers, he insisted, have to take proper responsibility for their children’s upbringing (see L King, ‘Hidden Fathers? The Significance of Fatherhood in Mid-twentieth 32

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the workload tiring and many industrialists tiresome.35 About his final five years—he died on Friday 27 January 1967—there is little to say. Besides fulfilling his commitments to the Plessey board, he chaired both the Thomson and the Wolfson foundations and served as a trustee for various other charities, made the occasional appearance in the lords (as when he opposed the Sexual Offences Bill in June 1965)36 and oversaw the publication of his memoirs—memoirs which close with the poignant admission that ‘the great political adventure’ was over from the moment Macmillan dismissed him.37 When the lords reopened for business on the Monday after his death, the tributes to his life came from peers of varied political convictions. Every speech exhibited genuine warmth.38

Century Britain’ (2012) 26 Contemporary British History 25 at 29, 40 fn 44). His work at Nuremberg, which began in October 1945, kept him away from his family for the best part of a year—he made just three returns to London, and Sylvia was able to visit him only twice (Political Adventure (n 7) 98). Their letters from this period, collected at the Churchill Archives, reveal a couple surviving these strains; if there were marital difficulties, they probably came at the end of Kilmuir’s life. In 1968, Sylvia married ‘Buck’ de la Warr, who, like Kilmuir, was a peer who had served under Churchill. Although Sylvia and Kilmuir never divorced, Harold Macmillan recorded in his diaries that she was ‘living openly’ with de la Warr when her husband died in January 1967 (Horne, Macmillan (n 26) 346). Macmillan’s account is rejected outright by Kilmuir’s grandson: ‘I can assure you that this is inaccurate, … a dotty Macmillan story which has been often reported…. My grandparents lived together lovingly until [Kilmuir’s] death’; Tom Blackmore, email to author, 31 Jan 2014. 35 36 37 38

See Heuston, Lives of the Lord Chancellors 1940–1970 (n 28) 179. See HL Deb 21 June 1965, vol 267, cols 392–401. Kilmuir, Political Adventure (n 7) 324. See HL Deb 30 Jan 1967, vol 279, cols 747–54.

IX Europe Kilmuir was head of the judiciary for eight years—one of the longest-serving Lord Chancellors of the twentieth century. But—as was stated early in this study, and as should now be clear—he was not an outstanding lawyer and he was only fleetingly a judge. His legal views and positions, certainly those on which we have focused so far, were either routinely commonsensical (occasionally to the point of being anodyne) or came to be remembered in connection with high-profile mistakes. By no stretch of the imagination was he an outstanding legal intellect. So why bother with him? Why spend time analyzing the opinions and achievements of a standard-issue—earnest but bland—mid-twentieth century British politiciancum-lawyer? Part of the answer—as intimated in chapter one—is that even a character like Kilmuir, considered in the round, yields plenty that is intriguing and worthy of examination, if only for the snapshot of a self-confessed ordinary mind formulating his best solutions to some extraordinary problems. But this cannot suffice as an answer, given that one could apply much the same reasoning to justify extended essays on any number of mediocrities. The claim that there is depth accompanying the blandness— that an interesting mixture of legal attitudes underscores his predilection for simple solutions—certainly adds to the picture, but it hardly completes it. Kilmuir is special primarily because he made a distinctive contribution

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to one of the major legal developments of the twentieth century. He was by no means solely responsible for this development, and whether his particular contribution to it would have materialized in any event—whether it is irrelevant that Kilmuir, and not somebody else, was the agent of change—we can never know. But his contribution is beyond doubt and, since it has never been set out in detail before, it is worth examining closely. For Kilmuir, the Conservative Party of the early-1960s had at least one thing going for it: a positive attitude towards Europe.1 The isolationism that had characterized the Eden era was no longer. Kilmuir—Maxwell Fyfe—had been ahead of the game: he had served as one of the original members of the Council of Europe and was closely involved in the drafting of the European Convention on Human Rights. To understand how he came to be in these roles, and how he approached them, it is necessary to return first to his involvement in the Nuremberg trials. A. NUREMBERG

Maxwell Fyfe’s greatest achievement at Nuremberg was to expose the duplicity of Hitler’s principal Reichsmarschall, Hermann Goering (something that the US chief prosecutor, Robert H Jackson, had conspicuously failed to do). With Goering, as with the other Nazi officers he cross-examined, Maxwell Fyfe’s technique was as straightforward as it was predictable: he read all the relevant files and then used what he had discovered—much as he would have done a decade earlier when prosecuting in the Manchester Assize Courts—to pick holes in 1

See Lord Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicolson, 1964) 322.

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the defendant’s testimony.2 Goering had claimed to be on leave when 50 escapees from Stalag Luft III were murdered. But the documents showed that the killings had continued for some three weeks after he had returned to duty, and that he must have known far more than he had admitted to knowing on earlier examination. At worst Maxwell Fyfe had proved that the head of the Four Year Plan was guilty of criminal negligence if he did not know what crimes were being committed in its name; at best he had shown beyond reasonable doubt that Goering had been fully aware of the barbarity.3

Maxwell Fyfe’s thoroughness as a cross-examiner, and his insistence on allowing the defendant to know the precise case against him and to speak to it (and thereby to incriminate himself) was commended in the press;4 he had been, in the words of one headline, ‘the Atlas of Nuremberg’.5 But his letters home showed that the experience took its toll. ‘[Y]esterday I went to a pre-view of the Russian film in Auschwitz concentration camp’, he wrote to his wife in January 1946.

2

See T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York, Knopf, 1992) 332–33 (Maxwell Fyfe crossexamining Dahlreus), 344–45 (Goering), 349–50 (Siedl), 446–47 (Papen), 524–27 (Juettner); RE Conot, Justice at Nuremberg (New York, Basic Books, 1983) 343–46 (Maxwell Fyfe cross-examining Goering), 356–59 (Keitel), 448–51 (Papen); also Kilmuir, Political Adventure (n 1) 110–35 (on cross-examining Goering, Ribbentrop, Keitel, Raeder, Doenitz, Papen and Neurath). 3 A Tusa and J Tusa, The Nuremberg Trial (New York, Atheneum, 1986) 287. 4 See eg anon, ‘Goering Myth Torn to Pieces: Exposed as Clever Monster’, The Observer 24 March 1946, p 5. 5 F Cockburn, ‘Maxwell Fyfe, The Atlas of Nuremberg’, Daily Sketch 30 Aug 1946, p 5; also N Carroll, ‘Day of Judgement Comes to Nazis’, Daily Dispatch (Manchester) 30 Sept 1946, p 2 (Maxwell Fyfe as ‘pillar of Nuremberg’).

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When one sees children of Mo’s [his seven-year old daughter’s] age and younger in this horrible place and the clothes of infants who were killed, it is worth a year of our lives to help to register for ever and with practical result the reasoned horror of humanity.6

Nobody, he remarked in other contexts, should be under any illusion that those whom he prosecuted had not ‘degenerated under the corrupting influence of power’,7 or had not understood the scale of the atrocities in which they had participated (while showing a ‘complete absence of moral courage’),8 or, by the time of the trials, had not ‘had ample time to look back and see to what their actions had led’.9 These defendants, ‘in carrying out the criminal programme of Nazi Germany’,10 had thoroughly ‘corrupted the human conscience’.11 Nor, he insisted, should anybody doubt that such evil could occur again.12 The fundamental question facing Europe in 1946 was: how might its recurrence be prevented? 6

D Maxwell Fyfe to S Maxwell Fyfe, 13 Jan 1946, in Kilmuir papers, GBR/0014/KLMR acc 1485, box 1, file 4. 7 D Maxwell Fyfe, ‘Foreword’ in GM Gilbert, Nuremberg Diary (London, Eyre & Spottiswoode, 1948) ix–xiii at xi–xii. 8 Kilmuir, Political Adventure (n 1) 128; also D Maxwell Fyfe, ‘Foreword’ in RW Cooper, The Nuremberg Trial (London, Faber & Faber, 1947) 7–14 at 11 (‘the Nazis … knew that what they were doing was wrong and that their actions were crimes’). 9 Maxwell Fyfe, ‘Foreword’ (to Gilbert, Nuremberg Diary (n 7)) x. 10 D Maxwell Fyfe, morning session, 29 Aug 1946, repr in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946, 42 vols (Buffalo, NY, Hein, 1995) XXII, 262 (also available via the Yale Law School’s Avalon Project, at http://avalon.law.yale.edu/imt/08-29-46.asp). 11 ibid 234. 12 See D Maxwell Fyfe, ‘Foreword’ in Trial of Heinz Eck, August Hoffmann, Walter Weisspfennig, Hans Richard Lenz and Wolfgang Schwender (Edinburgh, Hodge, 1948) xiii–xxi at xiii (‘barbarism is not years behind us, but always underneath us and ready to erupt’); Lord Kilmuir, The Comparative Influence of Personalities and Economics

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Maxwell Fyfe’s answer was very much the one to which he resorted in other contexts: the fate of the rule of law depends on decent people working hard to ensure that their values prevail. After the Second World War, he confessed to his solemn impression of ‘the inability of most people in all countries … to appreciate the meaning and value of … democracy, liberty and the rule of law’; any nation committed to these principles, he believed, would not only have to show ‘that its way of life … is worth to its own people the sacrifices needed to maintain [the nation’s] strategic power’ but would also have to contribute ‘to the moral ideas of the nuclear world’ in such a way as ‘to keep that world from disaster’.13 What form might that moral contribution take? ‘It may be presumptuous for lawyers, who do not claim to be more than the cement of society, to speculate’, he remarked in his closing speech at Nuremberg, [b]ut … [s]ome things are surely universal: tolerance, decency, kindliness. It is because we believe that there must be a clearance before such qualities will flourish in peace that we ask you to condemn this organization of evil. When such qualities have been given the chance to flourish … a great step will have been taken. It will be a step towards the universal recognition that ‘…sights and sounds all happy as her day, And laughter learnt of friends, and gentleness, And hearts at peace…’ are not the prerogative of any one nation. They are the inalienable heritage of mankind.14

in the Twentieth Century (Edinburgh, Institute of Bankers in Scotland, 1957) 13 (‘to-day barbarism is just beneath the veneer of civilisation’). 13

Lord Kilmuir, The Commonwealth Statesman in International Politics (Toronto, University of Toronto Press, 1958) 8. 14 Maxwell Fyfe, morning session, 29 Aug 1946 in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (n 10) XXII, 238.

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Apart from the slightly mis-quoted War sonnet,15 this passage hardly seems noteworthy; all it says is that it is time to begin afresh and re-establish some universal virtues, so that everyone might come to appreciate that nations cannot claim dominion over basic human goods. Yet Maxwell Fyfe regularly relied on the passage as his conclusion to an argument which he made often in the years after the War: that the ‘crusade for the rule of law’ demands a reassertion of ‘the tradition of natural justice, reason and human rights’,16 a mid-twentieth century affirmation ‘that the Law of Nature was not dead’.17 Taken in outline, the argument seems merely to be exhortation—a typical politician’s speech. But when, in 1947, Maxwell Fyfe became Churchill’s representative on the Committee of the United European Movement, there emerged the opportunity for him to put this argument to practical effect.

15

R Brooke, The Soldier (1914): …sights and sounds; dreams happy as her day; And laughter, learnt of friends; and gentleness, In hearts at peace … See also T Blackmore, ‘How the most English of poems inspired a Scot to champion European Human Rights’, UK Human Rights Blog 9 Nov 2010, at http://ukhumanrightsblog.com/. 16 Lord Kilmuir, ‘Justice Jackson and Nuremberg—A British Tribute’ (1955) 8 Stanford Law Review 54, 59. 17 Kilmuir, Political Adventure (n 1) 297. The passage from his closing speech at Nuremberg can be found repeated at eg ibid 135; D Maxwell Fyfe, ‘Grotius Dinner’ (1950) 36 Transactions of the Grotius Society 53, 56–57; ‘Foreword’ (to Trial of Heinz Eck et al (n 12)) xxi; ‘Guilt of German Leaders: Trade in Murder—Sir D Maxwell Fyfe’s Indictment’, The Times 30 Aug 1946, p 4; and D Maxwell Fyfe, ‘Prelude to European Unity’, Foyle’s luncheon speech, 21 Feb 1947, p 4, in Kilmuir papers, GBR/0014/KLMR 7/2.

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B. THE EUROPEAN MOVEMENT

The United European Movement became, in November 1947, the Joint International Committee for European Unity and, in October 1948, changed its name again to the European Movement, at which point it became responsible for making recommendations to governments concerning future steps towards juridical, economic, cultural and political unification. Its first major achievement was to set up the Council of Europe in May 1949. On 12 July, the European Movement submitted to the Committee of Ministers of the Council of Europe a combined draft human rights convention and proposal for a European Court of Human Rights (ECtHR).18 The members of the Council of Europe signed the finalized European Convention on Human Rights (ECHR) in November the following year. The ECHR came into force on 3 September 1953. The United Kingdom ratified the ECHR in 1951, though it did not incorporate it into national law until the end of the century. The July 1949 draft of the ECHR was officially produced by the ‘Juridical Section’ of the European Movement’s International Executive Committee, though it in fact had three main authors: a French parliamentarian and former Resistance member, Pierre-Henri Teitgen, a Belgian politician and former UN representative, Fernand Dehousse, and Maxwell Fyfe.19 The document had not come out of the 18 See GL Weil, The European Convention on Human Rights: Background, Development and Prospects (Leyden, Sythoff, 1963) 25–26; E Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights (Oxford, Oxford University Press, 2010) 51–52. 19 See the European Movement, The European Movement and the Council of Europe (London, Hutchinson, 1949) 115–19 (‘Draft European Convention on Human Rights’).

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blue. A resolution for the creation of a human rights charter, and a court with the jurisdiction to implement it, had been passed at a ‘Congress of Europe’ organized at The Hague in May 1948, some six months before the United Nations published the Universal Declaration of Human Rights.20 At that Congress, Maxwell Fyfe connected the European human rights project to the peril of Nazi recrudescence: the danger to human rights is almost never of a sudden onset. It comes gradually with people failing to realize how these rights disappeared…. It is essential that this Congress should place on record its determination that it will help in securing that these rights are promptly, fully and explicitly expressed.21

In due course, he would refer to the ECHR as ‘the positive corollary of the years when human rights had been eliminated’22—to ‘my Convention’, as he called it, as the ‘first step’ towards ensuring that these rights ‘can flourish’.23 The ECHR was not, nor was he seriously claiming it to be, the work of his hand alone.24 But he did play a significant role in determining its content. In their commentary 20

See G Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights, 1950’ (1993) 42 ICLQ 796, 800–01; MO Duranti, Conservatism, Christian Democracy and the European Human Rights Project, 1945–1950 (PhD dissertation, Yale University, Faculty of the Graduate School, 2009) 99. 21 Congress of Europe, The Hague: Cultural Committee, 8 May 1948 (10.15am session), Historical Archives of the European Union, European University Institute, Florence, UWK-NS-548, box 502, p 11. Maxwell Fyfe was, of course, not alone in making this connection: see eg European Movement, The European Movement and the Council of Europe (n 19) 112–13. 22 Lord Kilmuir, Nuremberg in Retrospect (Birmingham, Holdsworth Club, 1956) 17. 23 Maxwell Fyfe, ‘Grotius Dinner’ (n 17) 57. 24 In fact, he had an assistant to help him with the July 1949 document: see AWB Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, Oxford University Press, 2001) 650.

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accompanying the July 1949 draft Convention, Maxwell Fyfe and his co-authors acknowledged that, when producing the text, they ‘obtained opinions from qualified authorities in judicial, governmental and political circles in a number of countries’.25 Some of those consulted were of the view that the content of the ECHR should essentially mirror that of the Universal Declaration of Human Rights. But Maxwell Fyfe resisted the suggestion. A core lesson of Nuremberg, he insisted, was that disagreements between citizen and State must be heard by courts with appropriate jurisdiction and according to accepted principles of justice.26 The fundamental limitation of the Universal Declaration was that it was ‘not really drafted as a document capable of judicial interpretation and enforcement’; for Maxwell Fyfe—it is startling that a mid-twentieth century British Conservative who lauded parliamentary sovereignty should have taken this position—a European charter, were it not to be beset by the same limitation, must contain an undertaking by each [member] State to adopt as part of its municipal law the fundamental rights set out …

25

The European Movement and the Council of Europe (n 19) 119–20. See Kilmuir, Political Adventure (n 1) 82, 88–89; ‘Justice Jackson and Nuremberg’ (n 16) 56–58; Nuremberg in Retrospect (n 22) 4–5. Maxwell Fyfe reported as one of his successes at Nuremberg his having persuaded prosecutors with civil law backgrounds to accept that the trials should conform to general common law criminal procedure: see Political Adventure 87–88; D Maxwell Fyfe, ‘The Lawyer and the Legal System at Nuremberg’ Law Society address, Brighton, 23 Sept 1948 in Kilmuir papers, GBR/0014/KLMR acc 1485, box 3, file 1 (for a summary, see ‘Test of Five Legal Systems’, The Times 24 Sept 1948, p 2). To claim that there was such conformity at Nuremberg is an overstatement: some of the features of the trial procedure—the absence of a jury, the admissibility of hearsay evidence—are more typically those of civil rather than common law systems. 26

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and to give jurisdiction to its municipal courts to adjudicate upon the compatibility of legislative, administrative or other acts with those fundamental rights.27

In an unattributed essay published in July 1948, he offered a forthright summary of his position: a declaration by the nations of western Europe … must state without reservation the minimum requirements of democracy:—the legal right to freedom from arbitrary arrest and to a fair trial, the domestic rights, the right to information and the right to religious freedom. It is necessary that these minima should not only be stated but agreed. I believe that a Court, with its jurisdiction accepted by formal agreement, should be established before which complaints against any member State of falling below the standard should be examined.28

The fear that this Court could undermine parliamentary sovereignty Maxwell Fyfe considered unfounded, for the threat to sovereignty would only exist—the argument is straightforward Dicey29—if Parliament lacked the power to unmake the laws that it makes. ‘[M]aking a treaty is merely an exercise of sovereignty’30 rather than a decision to renounce sovereignty in the manner of Ulysses’ pact with his crew. Just as Parliament could commit the United Kingdom to the norms of an international human rights convention and the jurisdiction of its accompanying court, so too it could end that commitment if it so wished. 27

D Maxwell Fyfe to J Drapier, 3 Jan 1949, Historical Archives of the European Union (Mouvement européen), ME-1392, box 691. 28 [D Maxwell Fyfe], ‘Next Steps for “United Europe”’ (1947–48) 38 Round Table 742, 747. For the typescript, see Kilmuir papers, GBR/0014/KLMR 7/3 (pt 2). 29 AV Dicey, Introduction to the Study of the Law of the Constitution, 8th edn (London, Macmillan, 1915) 37–38 (‘Parliamentary sovereignty means … Parliament … has … the right to make or unmake any law whatever’). 30 Maxwell Fyfe, ‘Next Steps for “United Europe”’ (n 28) 744.

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C. SOVEREIGNTY AND THE EEC (AN EXCURSUS)

In order properly to take account of Maxwell Fyfe’s understanding of the implications that membership of a united Europe would have for national sovereignty, it is worth our taking a brief detour at this point to consider some advice which he provided on the constitutional implications of Britain joining the European Economic Community (EEC). The advice warrants some contextualization. In July 1960, Harold Macmillan appointed Edward Heath as Lord Privy Seal—a position to which there attached, from 1961, responsibility for negotiating Britain’s first attempt to join the EEC. The negotiations were not a success—as was observed in chapter two, de Gaulle vetoed Britain’s application in January 1963— and it would be another decade before the United Kingdom, under Heath’s premiership, was admitted. In the commons’ debate on the European Communities Bill, which took place after Heath had signed the Treaty of Rome in January 1972, considerable concern was expressed over how entry into the EEC would compromise national sovereignty.31 In July 1972, the Foreign Office sought to assuage fears that sovereignty would be undermined.32 31

See eg HC Deb 15 Feb 1972, vol 831, col 313 (Sir Derek WalterSmith) (‘[E]ntry to the Community involves as an inescapable condition substantial and irrevocable sacrifice of the sovereignty of Parliament and the subordination of British to Community law over a wide and varied range of our economic and social life’); also ibid, cols 297, 298, 314–15 and 317. 32 See Foreign and Commonwealth Office, Brief no 34: Sovereignty, 16 July 1971, National Archives, PREM 15/381 (‘The United Kingdom would continue to be a sovereign independent state…. Parliament will continue to exercise control over their Ministers…. By far the greater part of our domestic law would be unaffected. Only … regulations made by the Council and the Commission apply directly as law in each member state’).

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The government also produced a white paper in which it was stated unequivocally that there would be ‘no question of any erosion of essential national sovereignty’ as a result of the UK joining the EEC.33 Politicians since who have lamented the UK ever joining, and who would have no compunction about withdrawing from, the European Union have sometimes been inclined to protest that Heath knew full well that membership would compromise national sovereignty, and that the 1972 assurances to the contrary were nothing less than a betrayal of the country. ‘We were deceived by the government that took us into Europe’, James Goldsmith claimed in 1996. In the government’s official White Paper on Britain’s entry into Europe, the government had assured us … ‘There is no question of any erosion of essential national sovereignty’…. [T]he White Paper had been fraudulent. Heath was not seeking to create a community of sovereign nations but a federal European superstate.34

In January 1997, Goldsmith’s Referendum Party took out a two-page advertisement in the national press, purporting to point to ‘chilling evidence’ that ‘Heath and his close colleagues chose to purposely mislead the British public’.35 The evidence was a letter which the Lord Chancellor, Kilmuir, had sent to Heath on 14 December 1960, responding to Heath’s request for advice on the possible consequences for parliamentary sovereignty in the event of the UK joining the EEC. One page of the advertisement is taken up with a picture of the first page of Kilmuir’s

33 Cabinet Office, The United Kingdom and the European Communities (Cmnd 4715, 1971) paras 29, 31. 34 J Goldsmith, Who Governs Britain? Westminster or Brussels? (London, Referendum Party, 1996) 2. 35 ‘Referendum Party: It’s now or never—Let the people decide’ (advertisement), The Times 10 Jan 1997, p 9.

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letter, accompanied by a headline (‘Chilling proof that the politicians lied to us on Europe’).36 In the letter, the advertisement states, Kilmuir pointed out [to Heath] that Parliament would have to surrender to Europe the power to legislate. That European law would be the supreme law of the land. That we would lose our sovereign power to make treaties. And that this would lead to a ‘fully federal state’.37

Recall that in the late-1940s Kilmuir—Maxwell Fyfe— was in favour of Member States accepting limitations on their sovereignty in the event of their signing up to a European charter of fundamental rights; these States could hardly insist that national sovereignty remain completely undisturbed, he appeared to be saying, given that a condition of accepting the charter would be that municipal courts would sometimes have to determine if national laws are compatible with the rights which the charter upheld. In short, Kilmuir not only did not deny but could live with the fact that membership of the Council of Europe would have implications for national sovereignty. So was he really, in his letter to Heath, cautioning against the UK signing the Treaty of Rome on the basis that to sign would be to sign away the supremacy of Parliament? Not quite. Signing, he believed, would not mean completely forfeiting—though it would entail the surrender of some—national sovereignty. The Council of Ministers representing the executive governments of the EEC’s Member States would certainly be able to ‘make 36

ibid 8. ibid 9. For the argument that the real source of deception was the advertisement, see E Heath, The Course of My Life (London, Hodder & Stoughton, 1998) 717–18; J Campbell, ‘Did Heath deceive Britain over Europe?’, The Times 11 Jan 1997, p 22. 37

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regulations … which … even against our wishes … would … become for us part of the law of the land’, he wrote.38 But membership need not ‘carry us very far’ towards a ‘fully federal state’.39 Full federalism might be the outcome if the EEC’s Council or Commission were able to enter into international trade and tax agreements ‘on [the UK’s] behalf, and even against our will’.40 However, it would not be ‘detrimental to our sovereignty’ if our signing the Treaty of Rome meant no more than that ‘we undertook not to make tariff or trade agreements without the Council’s approval’.41 And of course it would be a mistake to think ‘that entry into the Community would be irrevocable’, for, just as Parliament could unmake any legislative commitment to uphold the ECHR, likewise it ‘would retain in theory the liberty to repeal’ the legislation incorporating EEC law into domestic law.42 Have no doubt, he advised Heath, that ‘the surrenders of sovereignty involved [in EEC membership] are serious ones’ which ‘must be given their full weight’—but ‘do not’ presume ‘that they must necessarily tip the scale’.43 That membership would ‘require us to make some sacrifice of sovereignty’ should be taken as given; our concern should be ‘to ensure that we … see exactly what it is that we are being called on to sacrifice, and how serious our loss would be’.44

38

Lord Kilmuir to E Heath, 14 Dec 1960, National Archives, PRO/ FO 371/150369. 39 ibid. 40 ibid. 41 ibid. 42 ibid. 43 ibid. 44 ibid.

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D. THE CONVENTION

In settling on what he believed should be the content of the draft European Convention, Maxwell Fyfe (we are back to the late-1940s) sought advice—not, we know, for the last time—from Arthur Goodhart, and also from Hersch Lauterpacht, then the Whewell Professor of International Law at Cambridge.45 Although Lauterpacht, primarily by virtue of having drafted an international bill of rights for the UN Human Rights Commission,46 had played a significant part in the movement which culminated in the Universal Declaration, the initiative had ultimately left him frustrated: the Universal Declaration of Human Rights, he lamented, was simply that—a declaration, unaccompanied by any machinery to ensure its enforcement.47 In the same month that the draft Convention was published, he

45 See Kilmuir, Political Adventure (n 1) 176; also E Lauterpacht, The Life of Hersch Lauterpacht (Cambridge, Cambridge University Press, 2010) 264. 46 H Lauterpacht, An International Bill of the Rights of Man (New York, Columbia University Press, 1945). The bill was submitted to the UN Human Rights Commission in 1947. 47 See M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, Cambridge University Press, 2001) 395 (‘Lauterpacht viewed the Declaration as mere decoration; not only unnecessary but counter-productive, a substitute for effective action. Even attempts to endow the Declaration with moral value were futile: what moral value has a commitment that States are openly entitled to disavow? It thus became legal doctrine’s task to create a living sense of the Declaration’s insufficiency and to quicken the pace of negotiations for an effective Bill of Human Rights’); Lauterpacht, The Life of Hersch Lauterpacht (n 45) 257 (‘He took the view that attention should be given first to the development of machinery for the enforcement of the basic rights’); also S Moyn, The Last Utopia: Human Rights in History (Cambridge, Mass, Belknap Press, 2010) 183–84.

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commended its drafters for venturing where the United Nations had declined to tread. ‘When accepted’, the draft Convention, unlike … the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948, … will form an enforceable part of the law of nations and of the municipal law of the States which have adopted it…. [I]t will possess, in addition to its legal force, the moral authority that is absent in pronouncements which are acceptable to all for the reason that they are binding upon none.48

Lauterpacht was able to laud the draft Convention thus because most of Maxwell Fyfe’s drafting suggestions had passed through the Juridical Section ‘fairly easily’.49 The July 1949 draft Convention contained a list of core ‘personal rights’ which Maxwell Fyfe had proposed— Article 1—along with the recommendation that both a supranational court and a commission (for determining which petitions were worthy of referral to the court)

48

H Lauterpacht, ‘The Proposed European Court of Human Rights’ (1949) 33 Transactions of the Grotius Society 25, 40. The article is republished with revisions as ch 18 of H Lauterpacht, International Law and Human Rights (London, Stevens & Sons, 1950). The book received a predictably positive review from Maxwell Fyfe (‘Human Rights’, The Observer 27 Aug 1950, p 7), who remarked that Lauterpacht’s work ‘did much to inspire’ the drafting of the ECHR. 49 Kilmuir, Political Adventure (n 1) 180. See also D Sandys [Chairman of the International Executive Committee of the European Movement] to D Maxwell Fyfe, 11 June 1949, in Duncan Sandys papers, Churchill Archives Centre, Churchill College, Cambridge, GBR/0014/ DSND 9/2/9 (‘I showed the revised draft Convention to Teitgen yesterday. Although he told me that he had put in a good deal of work drafting a document of his own which attempted to define the Human Rights in question, he readily agreed to adopt your paper and thought he would have no difficulty obtaining the support of Dehousse’).

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be established.50 There was disagreement among the participants in the drafting process over what the content of Article 1 should be.51 But Teitgen, who chaired the Juridical Committee, ultimately endorsed Maxwell Fyfe’s list, subject to only three alterations: (1) the deletion of the ‘right to retain [one’s] nationality until the acquisition of another nationality’; (2) the deletion of the right of all European citizens to petition a supranational Convention-enforcing court (until 1998, the Member States of the Council of Europe had the option to accord or withhold this right); and (3) by way of concession to Catholic interests, the insertion of a provision safeguarding ‘[t]he natural rights deriving from marriage and paternity and those pertaining to the family’.52 Teitgen and Maxwell Fyfe made the European Movement’s case for the draft Convention in speeches to the Consultative Assembly of the Council of Europe on 19 August 1949. Acceptance of a ‘binding convention … establish[ing] the fundamental principles of Western democracies’53 has to be the ‘passport’54 or ‘condition

50

See Weil, The European Convention on Human Rights (n 18) 26; Simpson, Human Rights and the End of Empire (n 24) 652–55; Duranti, Conservatism, Christian Democracy and the European Human Rights Project (n 20) 189–94. The European Commission on Human Rights was disbanded in 1998 when the European Court of Human Rights was restructured. 51 See Duranti, Conservatism, Christian Democracy and the European Human Rights Project (n 20) 183–89. 52 See ibid 193–96, 270. 53 D Maxwell Fyfe, speech to the First Session of the Consultative Assembly, Strasbourg, 19 Aug 1949 (eighth sitting), repr in AH Robertson (ed), Collected Edition of the ‘Travaux Préparatoires’, vol 1: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly 11 May—8 September 1949 (The Hague, Nijhoff, 1975) 114–24 at 115–16. 54 ibid 124.

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precedent’55 to membership of the Council of Europe, Maxwell Fyfe insisted. To accept ‘the proposed Convention would involve some voluntary surrender of sovereignty’ on the part of Member States, but only in the uncontroversial sense that they would renounce their ‘sovereign right[s] to suppress liberty and democratic institutions’.56 The objection that States would be accepting ‘rights [which] have not been defined with sufficient precision’ was countered with a classic piece of MaxwellFyfean organicism: ‘this is a highly disputable thesis’, for not only can national legislatures determine the scope and limitations of what the Convention sets out in an underspecified form, but—as ‘[t]he Supreme Court of the United States of America’ has shown in ‘administer[ing] and enforc[ing] the Bill of Rights’—judges, who after all take ‘cognizance of the facts of life’, are perfectly well placed to determine, taking account of historical, economic, religious or whatever context, what the Convention rights should mean.57 The Council of Europe was receptive to the petition: within three weeks of Teitgen’s and Maxwell Fyfe’s speeches, the Consultative Assembly had produced a proposal for a European Human Rights Convention.58 The Assembly made Maxwell Fyfe chair of 55

ibid 114. ibid 122. The point had already been made in the explanatory notes (‘Examination of Criticisms’) accompanying the draft Convention: see The European Movement and the Council of Europe (n 19) 126–28. 57 Maxwell Fyfe, speech to the First Session of the Consultative Assembly (n 53) 118. Again, the point is dealt with (though somewhat less confidently) in the ‘Examination of Criticisms’: see The European Movement and the Council of Europe (n 19) 122–24. 58 See Bates, The Evolution of the European Convention on Human Rights (n 18) 61; also P-H Teitgen, ‘Introduction to the European Convention on Human Rights’ in RStJ Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human 56

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the Committee on Legal and Administrative Questions, from which there emerged a text which was approved by a committee of senior officials in June 1950,59 and which, subject to further debate and modifications, was approved and opened for signature in Rome on 4 November.60 Between August 1949 and November 1950 there were, inevitably, disagreements and compromises over the text.61 Teitgen, a Socialist to the core, added to the list of Article 1 rights the ‘[f]reedom to unite in trade unions’ (this would ultimately feature in Article 11 of the ECHR) and removed the ‘[f]reedom from arbitrary deprivation of property’—neither of these redactions would have sat well with a Conservative like Maxwell Fyfe.62 The question whether there should be a right of individual petition to a supranational court—something Maxwell Fyfe considered integral to safeguarding against the re-emergence of anti-democratic forces, but which others feared might Rights (Dordrecht, Nijhoff, 1993) 3–14 at 9 (‘[T]he date of that first discussion, 19 August 1949, might perhaps be taken as the date when the European Convention on Human Rights emerged into positive law…. [I]t was not without satisfaction that I realized that the effective source of the European Convention on Human Rights was in fact the preliminary draft produced by the European Movement’s internal committee, a draft which the Assembly of the Council of Europe had tacitly accepted without comment as a basis for its work’). (Emphasis in original.) 59 See D Maxwell Fyfe (Chairman of the Committee on Legal and Administrative Questions) to the Chairman of the Committee of Ministers, 24 June 1950, CM (50) 29, Council of Europe archives, Strasbourg, at http://128.121.10.98/coe/pdfopener?smd=1&md=1&did =507369. 60 See Simpson, Human Rights and the End of Empire (n 24) 765–69. 61 For the main areas of disagreement, see D Nicol, ‘Original Intent and the European Convention on Human Rights’ [2005] Public Law 152, 159–67. 62 See Duranti, Conservatism, Christian Democracy and the European Human Rights Project (n 20) 262–64.

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be open to abuse63—proved particularly troublesome. In August 1950, the Committee of Ministers of the Council of Europe determined that acceptance by Member States of the jurisdiction of the court and the right of individual petition would be optional. The strongest resistance to compulsory jurisdiction and a mandatory right of petition had come from Britain.64 One predictable argument for resistance was that it would be a mistake to agree to anything that could seriously compromise the sovereignty of Parliament.65 A perhaps less obvious argument to emerge—one with which Maxwell Fyfe appears to have sympathized—was that the right of petition would extend to the Colonial territories, many of whose citizens were ‘still politically immature’ and might act irresponsibly if accorded it.66 The then Lord Chancellor, William Jowitt, made no pretence to box clever in making his case against 63 See ibid 287; also AH Robertson, ‘The European Court of Human Rights’ (1960) 9 American Journal of Comparative Law 1, 7–11. 64 See E Wicks, ‘The United Kingdom Government’s Perceptions of the European Convention on Human Rights at the Time of Entry’ [2000] Public Law 438, 448–54; Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights’ (n 20) 804–05, 809–10, 816. 65 See A Lester, ‘Fundamental Rights: The United Kingdom Isolated?’ [1984] Public Law 46, 54; Wicks, ‘The United Kingdom Government’s Perceptions of the European Convention’ (n 64) 449–50. 66 See Lester, ‘Fundamental Rights’ (n 65) 50; Wicks, ‘The United Kingdom Government’s Perceptions of the European Convention (n 64) 449; Simpson, Human Rights and the End of Empire (n 24) 727. Whether Maxwell Fyfe sympathized with this view in 1950 is not clear. But he was certainly of this view in 1958: see HL Deb, 18 Nov 1958, vol 212, cols 624–25 (Lord Kilmuir) (‘If the right of individual petition were accepted for the United Kingdom, Her Majesty’s Government, having extended the Convention to forty-two overseas territories, would at least—and I put the case at its lowest—be subjected to pressure to extend it also … to the colonial territories. I do not think that that would be understood in our colonial territories. Despite our great and continuous work of trusteeship and training,

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the draft Convention: ‘this document is a monument of lack of precision’.67 It is quite obvious to me that the draftsman, whoever he may have been, starts with the standpoint of a laissez faire economy and has never realised that we are now living in an age of planned economy…. [The Cabinet is] not prepared to encourage our European friends to jeopardise our whole system of law, which we have laboriously built up over the centuries, in favour of some half-baked scheme to be administered by some unknown court.68

It is worth dwelling for a moment on Jowitt’s allegation that the draftsman—it is difficult to resist speculating that he had Maxwell Fyfe in mind—did not envisage the Convention in the context of a planned economy. This was the main complaint levelled by members of the British Labour Party at Maxwell Fyfe’s Committee on Legal and Administrative Questions: were the draft Convention put into effect, they argued, a planned economy would very likely be impossible, for the government would be there are considerable sections of the populations in these countries which, politically, are still very immature. I hope noble Lords will not take that against me: I am simply stating the fact that there are sections of the populations that are politically immature’). 67

Lord Jowitt, LC, memorandum to Cabinet Office, undated [accompanied by covering note from the Secretary of the Cabinet dated 13 Oct 1950], National Archives, CAB 130/64 (appendix to GEN. 337/1st meeting). See also HL Deb 15 Nov 1950, vol 169, col 150 (Lord Jowitt, LC) (‘Though we signed this document, and it will be ratified, to a mere pedantic lawyer it has given some little anxiety. Have your Lordships seen it? I should very much like your Lordships to study it, because this is a statement of the relevant law in a very few paragraphs. When I think that in my library I have the law of this country in book after book, running into hundreds of books, it is remarkable to me that this aspect of the law can be stated in so few paragraphs. The result is inevitably that it is stated vaguely…. [T]his document is a compromise, as can be seen in every single clause’). 68 Lord Jowitt, LC, to H Dalton [Minister of Town and Country Planning], 3 Aug 1950, National Archives, LCO 2/6274 (3363/22, pt 1).

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prevented from exercising powers of economic control.69 If a local authority wanted to send one of its agents into a council house to carry out meter readings, for example, what could prevent an occupant from refusing entry on the basis that, under Article 1 of the ratified draft Convention, he had a right to ‘[t]he sanctity of [his] home’? The complaint cut no ice with Maxwell Fyfe. A Convention which stymied a planned economy he would have considered all well and good. Various commentators observe that he supported the post-War human rights project as a response not only to Nazism but also to new threats to democracy;70 in speeches at home and in the United States in the years following the Second World War, he would regularly denounce Labour’s nationalization measures as the worrying first steps towards a Communist Britain.71 The draft 1949 Convention should not, he insisted, include the array of social and economic rights that had been included in the draft international bill of human rights which Lauterpacht had presented to the UN Human Rights Commission 69

See M Duranti, ‘Curbing Labour’s Totalitarian Temptation: European Human Rights Law and British Postwar Politics’ (2012) 3 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 361, 375–76; Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights (n 20) 812–13; Simpson, Human Rights and the End of Empire (n 24) 727–28. 70 See eg A Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217, 237; Duranti, ‘Curbing Labour’s Totalitarian Temptation’ (n 69) 368–70. 71 See eg D Maxwell Fyfe, ‘Who Wins the War for Your Mind?’, Sunday Express 6 Oct 1946, p 8 (‘Today’s adherents of the “closed shop” for nationalised industries in Britain are asking that the State should own and control the industry and the worker should be compelled, by threat of preventing him working, to join one union for that industry—and that union alone will decide his industrial future…. It is the giving rein to this urge to control which worries anyone who compares its sorry results in Germany with its beginnings in Great Britain’); ‘England To-day: An Indictment’, Sunday Chronicle 6 Oct 1946,

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in 1947. To include these rights in the Convention, he maintained in his August 1949 speech to the Consultative Assembly, would render it ‘too controversial and difficult of enforcement even in the changing state of social and international development in Europe’, and so ‘jeopardise [its] acceptance’.72 By August 1950, he was reinforcing this argument with a second one: it is better not to protect social and economic rights under the Convention, for these are precisely the rights which ‘will be used by Communists as part of their campaign against’ democratic nations.73 Again, Maxwell Fyfe’s preference prevailed.74 Economic and social rights were to have no place in the ECHR. The Council of Europe eventually affirmed a list of such rights when it adopted the European Social Charter (ESC) in 1961, and it extended the list when it revised the ESC in 1996. But whereas the ECHR can be enforced by the ECtHR, there is no comparable court that can enforce the ESC. p 7; ‘Qualities of Human Character’, Carmarthen Journal 3 Oct 1947, p 13; ‘“We are Losing the Things that Matter Most”: Socialists’ “Squalid Pseudo-paradise” on Tick’, Stockport Express 23 Oct 1947, p 8; anon, ‘Nuremberg Prosecutor Indicts Socialism: “Greatest Breakdown in Governmental Administration”’, Accrington Observer 5 Oct 1946, p 9; anon, ‘Conservative Views Life in Britain as “Socialism on Tick”’, Chicago Daily Tribune 30 May 1948, p 5; W Fulton, ‘Marshall Aid Seen as Prop to Laborites: Hope to Stave Off Breakdown’, Chicago Daily Tribune 8 Jan 1948, p 12; anon, ‘Cabinet Minister Excoriates Labor Party; Socialist Plan Called “Disaster Blueprint”’, New York Times 27 Sept 1953, p 25; anon, ‘“Challenge of Democracy”: Lord Kilmuir at St. Andrews’, The Times 21 April 1956, p 4; AC Wehrwein, ‘Briton Alarmed by Bureaucracy: Vigilance Needed to Mitigate its “Harshness,” Viscount Kilmuir Warns U.S.’, New York Times 1 May 1960, p 9. 72 Maxwell Fyfe, speech to the First Session of the Consultative Assembly (cf n 57) (n 53) 116. 73 Maxwell Fyfe, ‘Human Rights’ (n 48) 7. 74 See N Wahlström, ‘The Struggle for the Right to Education in the European Convention on Human Rights’ (2009) 8 Journal of Human Rights 150, 154–55; Duranti, Conservatism, Christian Democracy and the European Human Rights Project (n 69) 374–75.

X Concluding Reflections Even though post-War British politicians hardly rushed to embrace plans for European unity, the United Kingdom was still the first State to ratify the European Convention on Human Rights (ECHR). This is because Clement Attlee’s administration recognized that it would look foolish were it to refuse to sign.1 The Committee of Ministers had made significant compromises in exchange for British ratification—particularly by making member States’ acceptance of the jurisdiction of the European Court of Human Rights (ECtHR) and the right of individual petition optional rather than mandatory. Churchill, famously, had led the calls for a united Europe in 1947. That Maxwell Fyfe was disappointed at Britain’s disinclination to be a key player in the European project in the 1950s is not at all surprising. He, after all, had been one of the project’s principal architects. Most of his draft Convention remained in the ECHR, economic and social rights were kept out of the text, and his case for a supranational court won the day (though it would be a long time before the United Kingdom accepted Strasbourg’s

1 See G Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights, 1950’ (1993) 42 ICLQ 796, 819–25; AWB Simpson, ‘Britain and the European Convention’ (2001) 34 Cornell International Law Journal 523, 550–52; Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, Oxford University Press, 2001) 746–50.

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jurisdiction).2 Once the Convention had been signed, various speakers in the commons made a point of congratulating him on his achievement—an achievement which would be acknowledged in Parliament again in 1987 when the Conservative MP, Sir Edward Gardner, made the first serious attempt (by use of a private member’s bill) to have the ECHR incorporated into UK law.3 A humdrum, sometimes rather hapless, slightly Widmerpool-like figure in national public life, Maxwell Fyfe had turned out to be very much a success story on the continental stage. It is impossible to say, of course, what he would have thought about his legacy as a player on that stage, and one might hesitate to hazard a guess. When, in recent years, the United Kingdom has found itself charged with human rights violations for, among other things, denying prisoners the vote, and imposing non-reviewable life tariffs on convicted murderers, critics of Strasbourg jurisprudence have tended to argue from original intent. The drafters of the ECHR, so the argument goes, were seeking to guarantee a set of rights respect for which would prevent the reemergence of totalitarianism and the nurturing of future tyrannies. ‘In the hands of the Strasbourg court’, Article 8 of the ECHR—a ‘perfectly straightforward provision’ which ‘was originally devised as a protection against the surveillance state by totalitarian governments’—has, according to one Justice of the Supreme Court, been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of

2

See Lord Lester, ‘U.K. Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in 1965’ [1998] Public Law 237. 3 See HC Deb 13 Nov 1950, vol 480, cols 1412, 1465, 1473, 1485. For Gardner’s tribute, see HC Deb 6 Feb 1987, vol 109, col. 1224; also J Straw, ‘The Human Rights Act—Ten Years on’ (2010) 6 European Human Rights Law Review 576, 576.

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criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court. The effect of this kind of judicial lawmaking is in constitutional terms rather remarkable. It is to take many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transform them into questions of law to be resolved by an international judicial tribunal.4

The instinct that the Convention has been transformed into something it was never supposed to be, and that this is largely a transformation for the worse, is not confined to just one member of the United Kingdom’s higher judiciary. The accommodation of a child in order to satisfy the terms of a care plan can never amount to an unjustified and arbitrary deprivation of liberty within the terms of Article 5 of the ECHR, Mostyn J ruled in 2010.5 ‘I find it impossible’, he added, to conclude that the framers of the Convention would even in their wildest dreams have contemplated that Art 5 might be engaged by [such] facts…. Even allowing for the accepted concept that the Convention is a living instrument there has to be a line drawn somewhere where the court will say ‘thus far and no further’.6

4 J Sumption, ‘The Limits of Law’ (Azlan Shah Lecture, Kuala Lumpur, 20 Nov 2013) at www.supremecourt.gov.uk/docs/speech-131120.pdf, 7–8. See also R (on the application of Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 at [303]–[308] (Lord Collins). 5 Re RK [2010] EWHC 3355 (COP) at [33]. The ruling was upheld (though not all of Mostyn’s reasoning followed) in RK v BCC & Ors [2011] EWCA Civ 1305. 6 Re RK at [41].

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In Cossey v Secretary of State for Justice, decided in July 2013, Mostyn dismissed as ‘absolutely meritless’ a claim for wrongful discrimination contrary to Article 14— the claimant having alleged that, by having to serve the non-tariff part of an indeterminate sentence for an especially serious offence, he was being denied the Convention rights enjoyed by remand and civil prisoners.7 The Convention, the judge continued, incorporates into our law certain basic precious rights and freedoms … which … were formulated in 1950 as a direct response to the tyrannical horrors of the Second World War…. Sir David Maxwell-Fyfe, later Lord Kilmuir, Lord Chancellor, was the key architect of the Convention. As a prosecutor at Nuremburg he would have been especially alive to the sort of abuses which the Convention was designed to prevent in the future. Were he to be alive today I think he would be amazed to be told that a claim for violation of Article 14 was being advanced on the facts of this case.8

Much the same basic line of argument is to be found in a Conservative Party document, Protecting Human Rights in the UK, which appeared three months after the High Court’s ruling in Cossey. ‘[T]he ECtHR has used its “living instrument doctrine” to expand convention rights into new areas’, the document states, ‘and certainly beyond what the framers had in mind when they signed up to it’.9 Should they obtain a majority in the May 2015 general election, the Conservatives propose to repeal the Human Rights Act 1998 and put ‘the text of the original Human Rights Convention’—Maxwell Fyfe’s text—‘into primary 7

R (on the application of Cossey) v Secretary of State for Justice [2013] EWHC 3029 (Admin) at [2]. 8 ibid at [3]–[4]. 9 Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws (London, Conservative Party, 2014) 3.

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legislation’.10 ‘There is’, the Conservatives’ proposal continues, ‘nothing wrong with that original document, which contains a sensible mix of checks and balances alongside the rights it sets out, and is a laudable statement of the principles for a modern democratic nation’.11 The proposal might benefit from some finessing. One of the more puzzling features of Protecting Human Rights in the UK is its assurance that, should the plan be put into effect, ‘[t]he UK courts … will have the final say in interpreting Convention rights’ because they ’will no longer be required to take into account rulings from the Court in Strasbourg’.12 Having to take account of what someone else says on a matter does not stop one from having the final say on that matter. Certainly, a court which is obliged to take into account the decisions of another court might sometimes rather too readily follow the precedents of that court.13 But the fact that a UK court ‘must take 10

ibid 5 ibid. See also SP OR session 4, 2 June 2011 FMQ, col 302 (First Minister Alex Salmond) (‘I have never understood the apparent inability of the Scottish Conservatives now to defend Scots criminal law…. I have also never understood Conservatives’ antipathy to the European convention on human rights. After all, the convention’s principal author was a Scot—Sir David Maxwell Fyfe—who was, incidentally, a Conservative politician’); HC Deb 3 July 2009, vol 495, col 661 (Bridget Prentice) (‘The convention was in large part … the work of British jurists—not least of Sir David Maxwell Fyfe who later as Lord Kilmuir became Lord Chancellor—so while the convention may be European by name, it is very much British by heritage. In some respects, given that history, one wonders why the Conservatives are so keen to unpick so much of what is in the Human Rights Act’). 12 Protecting Human Rights in the UK (n 9) 5. 13 See D Neuberger, ‘The role of Judges in Human Rights Jurisprudence: A Comparison of the Australian and UK Experience’ (8 Aug 2014) at www.supremecourt.uk/docs/speech-140808.pdf, 16–17 (‘Save where we feel that Strasbourg has misunderstood or misappreciated our common law system, we UK judges have, I suspect, sometimes 11

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into account’14 Strasbourg jurisprudence when ruling on issues concerning Convention rights does not mean that it is strictly bound by that jurisprudence.15 Indeed, there are three instances—when there appears to be no clear and constant line of ECtHR authority on a matter, when Strasbourg jurisprudence is inconsistent with some fundamental substantive or procedural feature of domestic law, and when the ECtHR appears to have misunderstood or failed to appreciate an argument or point of principle—in which the UK’s highest court has determined that it will not follow Strasbourg decisions.16 The statutory obligation

been too ready to assume that a decision, even a single decision of a section of that court, represents the law according to Strasbourg, and accordingly to follow it…. I think we may sometimes have been too ready to treat Strasbourg court decisions as if they were determinations by a UK court whose decisions were binding on us’); R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63 at [121] (Lord Sumption) (‘In the ordinary use of language, to ‘take into account’ a decision of the European Court of Human Rights means no more than to consider it…. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases…. A decision of the European Court of Human Rights … is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject … unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court’); also R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26 at [20] (Lord Bingham). 14

Human Rights Act 1998, s 2(1). R v Horncastle [2009] UKSC 14 at [11] (Lord Phillips). See also J Laws, The Common Law Constitution (Cambridge, Cambridge University Press, 2014) 73–85. 16 See eg N v Secretary of State for the Home Department [2005] UKHL 31 at [11] (Lord Nicholls); Manchester CC v Pinnock [2011] UKSC 6 at [48] (Lord Neuberger); and R v Spear [2002] UKHL 31 at [11] (Lord Bingham). 15

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on the courts to take these decisions into account, though by no means to be treated as a trivial obligation, cannot be read as Parliament’s intention—in choosing the language enacted in section 2(1) of the Human Rights Act 1998— to make Strasbourg jurisprudence unassailable for the purpose of determining how Convention rights apply in the UK. There is a temptation to presume—as commentators occasionally have17—that some of the interpretations placed on the Convention by the ECtHR, and the capacity for these interpretations to make national statutes incompatible with our Convention commitments (or compatible only if they are read down so as to yield a meaning which Parliament did not intend them to yield), must have had David Maxwell Fyfe spinning in his grave. The presumption could well be a fair one. Certainly many of the applications of the Human Rights Act are unlikely to have been applauded by a man with a low opinion of homosexuals and who defended the death penalty.18 But it is perhaps worth bearing mind what was said at the conclusion to chapter one—and what, by now, should be obvious enough: Maxwell Fyfe, though a Conservative through-and-through, adopted positions which were

17 See eg G Stewart, ‘The Accidental Legacy of a Homophobic Humanitarian’, The Times 2 Oct 2000, section 2, pp 6–7; anon, ‘After 60 years, bring back Britain’s Rights’, Daily Mail 3 Sept 2013, p 14. 18 The ECHR originally provided for the possibility of imposing the death penalty: ‘No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’ (art 2, s 1). Not until 1983 did the Council of Europe issue a legally binding instrument (the sixth protocol to the ECHR) providing for the unconditional abolition of the death penalty in peacetime, and the ECtHR has demurred from ruling that the death penalty must always amount to inhuman and degrading treatment: Öcalan v Turkey (2005) 41 EHRR 45.

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not always predictable. He favoured the establishment of a supranational court with the capacity to enforce Convention norms, believed that municipal courts should be empowered to determine whether national legislation impugned on the basis of those norms is compatible with Convention commitments, and accepted that legislative supremacy is something that a State most likely has to compromise on if it is to join an organization such as the Council of Europe (or, for that matter, the European Economic Community). It is important, moreover, not to discount his regular proclamations to the effect that the law, both statutory and judge-made, is organic and has to adapt to fit with a constantly changing world. To have remained true to this conviction, Maxwell Fyfe could hardly—other than by being remarkably selective (which we know was not beyond him)—have done anything other than concede that the Convention is a living instrument, that interpretations of its highly generalized norms have to move with the times, and that claims which would never have been envisaged as having human rights dimensions in 1950 may well be valid human rights petitions today. His reasons for supporting the European human rights project were diverse and ran deep; that he would have lost faith in the project is certainly not something to be taken for granted. Any modern Conservative Eurosceptics minded to conclude that he would, today, be among their allies would do well to look carefully at his record.

Index Anglo-French Suez Canal Company 46–7, 53, 58 Arbuckle Smith v Greenock Corporation (1960) 84 Aswan Dam 47 Atkin, Lord 45–6 Attlee, Clement 25, 123 Auschwitz concentration camp 102–3 Australian Mutual Provident Society v IRC (1962) 91n Balliol College, Oxford 10–11 Beaverbrook Press 17 Bentley, Derek 39, 40–1, 42, 43, 92 Bevan, Aneurin 38 Birkenhead, Lord 6–7 Blackmore, Tom (grandson) 98n, 105n Blackstone, Sir William 78 Bonham Carter, Violet 49 Bonham’s case 65–6 Bracken, Brendan 3n Bratty v A-G for Northern Ireland (1963) 81–2 British Commonwealth Union (BCU) 11 Brooke, Rupert 105n Burgess, Guy 29 Cade v British Transport Commission (1959) 91n Canadian Pacific Steamships Ltd v Bryers (1958) 83n, 91n capital punishment 35–42, 43, 129n Chamberlain, Neville 15 Christie, John 37–8 Churchill, Winston 16, 18, 20, 42, 105 industrial policy 24–6 Co-partnership To-day (pamphlet) 23–4 Coke, Sir Edward 65–6 Coldstream, Sir George 56 colonialism 34n, 119

commercial television, introduction of 27 Commonwealth Statesman in International Politics, The 77n, 94 Communist Party 30 Congress of Europe 107 Coningsby Club 29 Conservatism, post-1945 18–26 competitive capitalism 18–19 partnership-based conservatism 19–21 profit sharing 19 trade unions, Conservatives’ attitude towards 22–6 Conservative Central Office 11 coronation 27 corporal punishment 27–8 Cossey v Secretary of State for Justice (2013) 126 Council of Europe 17, 106, 130 Craig, Christopher 39 Criminal Justice Act 1948 27 Daily Mail 30 de Gaulle, Charles 17, 110 de la Warr, Earl (Herbrand Sackville) 98n Dehousse, Fernand 106 Denning, Alfred (Lord) 1 Devlin, Patrick (Lord) 1, 74–5 Dicey, Albert Venn 109 DPP v Smith (1961) 86–90 Dworkin, Ronald 78 East Coast floods (1953) 27 Eden, Anthony 16, 17, 101 Suez crisis 47, 54–5 Egypt, and Suez crisis 46–8, 49, 53 Eisenhower, Dwight 47–8 European Convention on Human Rights (ECHR) 14–15, 17 background 106 and colonial territories 119 Kilmuir’s role vii, 106–9, 114–22, 123–4, 127n, 129–30

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legacy 124–5 parliamentary sovereignty 109, 130 personal rights 115–16 and planned economy 120–1 ratification by UK 123–4 social and economic rights 122 trade union rights 118–19 and UK courts 127–9 European Court of Human Rights (ECtHR) 106, 123, 128–9 European Defence Community 17 European Economic Community (EEC), and sovereignty 110–13 debate on 110–11 Kilmuir’s advice 110, 111–13, 130 European Movement 106–9 European Union 17 Euroscepticism 17, 110–12, 130 Evans, Beryl 37–8 Evans, Timothy 37–8 Federation of British Industries 11, 74–5 Fitzmaurice, Sir Gerald 54–7 France, and Suez crisis 47, 52 Fyfe, Sir David Maxwell see Kilmuir, Lord Fyfe, William Thompson (father) 9 Gardiner, Lord 80n Gardner, Sir Edward 124 George Watson’s College 9–10 Gielgud, John 29 Goering, Hermann 101–2 Goff, Robert (Lord) 86n Goldsmith, James 111 Goodhart, Arthur 50–4, 55, 114 Haldane, Lord 6–7 Harold Holdsworth & Co (Wakefield) Ltd v Caddies (1955) 91n Harrison, Rex 98n Heath, Edward 110, 111–12 Henderson QC, John 37–8 Heuston, RVH 40 Hewart, Lord 66 Home Secretary see under Kilmuir, Lord Homicide Act 1957 82n homosexual offences 28–34, 43, 93 Homosexual Offences and Prostitution, Report of the (Wolfenden) Committee 33

House of Lords, women as members of 21–2 Human Rights Act 1998 126, 128, 129 ‘Human Rights’ (review) 115n, 122n Hynd’s (No 1), Re (1955) 82n Income Tax Act 1952 83 ‘Individual Freedom under an Unwritten Constitution’ (article) 67n Industrial Charter, The (pamphlet) 20, 22–6 Industrial Policy Committee (IPC) 20 IRC v Hinchy (1960) 82–4 Irvine, Lord 80n Israel, and Suez crisis 47, 48 Jacob, Sir Ian 68–9, 70–1 Joint International Committee for European Unity 106 Jowitt, William (Lord) 6–7, 119–20 Judicial Committee of the Privy Council 80 judicial independence see under Kilmuir, Lord ‘Judicial Qualities’ (article) 79n Kilmuir, Lady (later Countess de la Warr) 21n, 41, 98n Kilmuir, Lord (formerly Sir David Maxwell Fyfe) barrister 3 birth/education 9–11 career, significance of vii, 5–6 conception of law 77–9, 91, 94–6, 104–5 Conservative politics 10–11, 97–8 see also Conservatism, post-1945 death/tributes 99 departure from office 96–9 Europe vii, 7–8, 16–17, 21, 101, 103, 123–4, 129–30 see also European Convention on Human Rights (ECHR); European Economic Community (EEC), and sovereignty Home Secretary 18, 26 capital punishment 35–42, 43 colonialism 34n corporal punishment 27–8 East Coast floods (1953) 27

INDEX homosexual offences 28–34, 43, 93 non-‘law and order’ issues 27 industrial policy, in opposition 20, 21–6 judicial independence Kilmuir Rules 67–73, 92 separation of powers 63–7 special courts, case for 73–6 judicial output 1, 80–90 law officer, Kilmuir as 14 legal aid 95–6 legal career 11–12 legal contribution 100–1 Lord Chancellor 1, 2–3, 6–8, 21, 26, 100 appointments 80 departure from office 96–9 judicial output 1, 80–90 roles 43, 44 marriage/family 98n member of parliament 4, 12 Nuremberg see Nuremberg Trials political qualities 91–3 social issues 93 strengths/limitations 12–14 Suez see Suez crisis summary of study 4–5 titles viii war criminals’ prosecution see Nuremberg trials writings Commonwealth Statesman in International Politics, The 77n, 94 ‘Human Rights’ (review) 115n, 122n ‘Individual Freedom under an Unwritten Constitution’ (article) 67n Industrial Charter, The (pamphlet) 20, 22–6 ‘Judicial Qualities’ (article) 79n Law of Parliamentary Privilege, The (pamphlet) 71n Monopoly (pamphlet) 22–3 newspaper articles 121n ‘Next Steps for “United Europe”’ (essay) 109 Nuremberg in Retrospect (lecture) 43–6, 107, 108

133

Nuremberg Trial, The (RW Cooper), Foreword 103n other articles 71n Oxford Review, The 11, 19 Political Adventure (memoirs) 3, 99 Right Road for Britain, The (pamphlet) 21 ‘Scottish Influences on the English Bar’ (address) 79n style of writings/speeches 93–4 ‘The British Courts and Parliament’ (article) 65–7 ‘The Legal Aspects of the Mindszenty Trial’ (article) 68n ‘The Office of Lord Chancellor’ (article) 64n ‘The State, the Citizen and the Law ’ (article) 67n, 76n, 77, 93n Trade Union Law (NA Citrine), Foreword 79 Trial of Heinz Eck etc, Foreword 103n, 105n True Balance, The (pamphlet) 21 Kilmuir Rules 67–73, 92 Lauterpacht, Hersch 114–15, 121 Lavender Scare campaign (US) 29 law officers, Suez crisis, advice 57–8, 63–4 Law of Parliamentary Privilege, The (pamphlet) 71n Land Registration Act 1925 84–5n Law Quarterly Review, The 51 legal aid 95–6 Lindsay, Alexander 10 Liverpool West Derby (constituency) 4 Local Government (Scotland) Act 1947 84n London CC v Wilkins (1957) 93n Lord Chancellor see under Kilmuir, Lord Lords, women as members of 21–2 Lyle v Rosher (1959) 84–5 Mackay, Lord 69–70 Maclean, Donald 29 Macmillan, Harold 16 EEC negotiation 110

134

INDEX

Kilmuir’s dismissal 97, 99 Suez crisis 50 McNair, Arnold (Lord) 57 McWilliams v Arrol & Co (1962) 81n Manningham-Buller, Sir Reginald 97 Maxwell Fyfe, Lalage (daughter) 98n Maxwell Fyfe, Sir David see Kilmuir, Lord Miles, Sidney 39, 40–1 Mindszenty, Jósef 68 Monckton, Walter 26 Monopoly (pamphlet) 22–3 Montesquieu, Charles Louis 63 Morton, Lord 85 Mostyn, Nicholas 125–6 Munich Agreement 15–16 Nasser, Colonel Gamel Abdal 46–7, 49, 58 necessity doctrine 56 New Despotism, The (Hewart) 66 ‘Next Steps for “United Europe”’ (essay) 109 Nuremberg Diary (GM Gilbert), Foreword 103 Nuremberg in Retrospect (lecture) 43–6, 107, 108 Nuremberg Trial, The (RW Cooper), Foreword 103n Nuremberg Trials 14–17, 78, 98n, 101–5 and ECHR 107, 108 ex post facto law 44–6, 58 necessity doctrine 56 Oxford Review, The

11, 19

parliamentary sovereignty 64–6 European Convention on Human Rights (ECHR) 109, 130 see also European Economic Community (EEC), and sovereignty Perpetual Trustee Co Ltd v Pacific Coal Co Ltd (1956) 82n Pickard-Cambridge, Arthur 10 Plessey (electronics company) 98–9 Political Adventure (Kilmuir memoirs) 3, 99 Pound, Roscoe 78

Protecting Human Rights in the UK (document) 126–8 pubs, State-owned and -operated 27 racial discrimination 93 Radcliffe, Lord 1 Rea, Lord 12n Referendum Party 111–12 Reid, Lord vii, 1, 85 Renton & Co v Palmyra Trading Corp (1957) 91n Report of the (Wolfenden) Committee on Homosexual Offences and Prostitution 33 Restrictive Practices Court 73–6 Restrictive Trade Practices Act 1956 73 Right Road for Britain, The (pamphlet) 21 Rowland, Walter Graham 36 Sampson, Anthony 13 Scott, Sir Walter 9 ‘Scottish Influences on the English Bar’ (address) 79n separation of powers 63–7 Sexual Offences Act 1967 33 Sexual Offences Bill 1965 99 Shawcross, Sir Hartley 14 Simonds, Lord 6–7, 68n South of Scotland Electricity Board v British Oxygen Co (1959) 82n sovereignty see European Economic Community (EEC), and sovereignty; parliamentary sovereignty special courts, case for 73–6 Strasbourg jurisprudence 127–9 Suez crisis 43 Anglo-French invasion 48–9, 52, 53–4 background 46–8 Goodhart’s support 50–4, 55, 56–7 Kilmuir’s view/advice 49–50, 55–60 passim, 62, 64, 77–8 law officers’ advice 57–8 specialist advice 54–5 Waldock’s advice 59–62 Sumption, Jonathan (Lord) 124–5 Sunday Times, The 33

INDEX Teitgen, Pierre-Henri 106, 116, 117, 118 ‘The British Courts and Parliament’ (article) 65–7 ‘The Legal Aspects of the Mindszenty Trial’ (article) 68n ‘The Office of Lord Chancellor’ (article) 64n ‘The State, the Citizen and the Law’ (article) 67n, 76n, 77, 93n ‘The Use and Abuse of Words’ (article) 94 Thompson Foundation 99 Times, The 25, 49, 51 Trade Disputes and Trade Unions Act 1927 24–5 Trade Union Law (NA Citrine), Foreword 79 Treaty of Rome 110, 112–13 Trial of Heinz Eck etc, Foreword 103n, 105n True Balance, The (pamphlet) 21 Turing, Alan 29

135

United European Movement, Committee of 16–17, 105, 106 United Nations Charter (1945), Article 51 49, 50, 51, 61, 63 General Assembly 48 Human Rights Commission 114 United States, and Suez crisis 47–8 Universal Declaration of Human Rights 107, 108, 114 Verdin v Coughtrie (1961) 83n Vine v National Dock Labour Board (1957) 81n, 91n Waldock, CHM 59–62 Ware, David 36 Wigley v British Vinegars Ltd (1964) 83n, 91n Wolfenden Committee 33 Wolfson Foundation 99 women, as members of House of Lords 21–2 Wright, Quincy 53