Foreign and Commonwealth Office
London SW1A 2AH
Telephone: ol-233-5994
12 December 1978
J W Bourne Esq CB Permanent Secretary
Lord Chancellor's Office House of Lords
London SW1A OPW
HKA 373/393/3
RECEIVED
SIFY NO. 51
1 3 DEC 1978
Dear ! Vilfred
JUDGES FOR HONG KONG
INDEX
PA
1 72.
m! ! ! P.P. 13/2
Many thanks for your letter 4123/102 of 7 December.
We agree that you will have to send a somewhat discoura- ging reply to Denys Roberts and according that it would not be fair to invite further particulars.
Un reading Roberts' letter I was reminded that some years ago two county court judges were seconded to Uganda, after adependence I believe. I do not know how this worked out Sut Kutlu Fuad of the Commonwealth Secretariat might have some local recollections, having served on the High Court of Uganda nimself.
I daresay it would be as difficult for you to spare members of the suportate judiciary for temporary secondment to Hong Kong as to spare High Court judges (who might in any case be too high-powered) but if there is any mileage in it, perhaps the idea could be tentatively mentioned.
Otherwise no observations occur to me beyond the fact that Hong Kong is far from being a typical colonial territory and because some of its problems are unique we must not shrin Trom unique solutions, although unsupported by colonial precedent.
LAST
38
Ever
yours
Fintony Kusnyad
A A Rushford
Deputy Legal Adviser
39
CODE 18-77
Reference
W38
Mr Rushford
JUDGES FOR HONG KONG
1.
2.
Mr Bourne's letter to you of 7 December below.
Like you,
I am somewhat at a loss for further arguments; at this stage, I think we would do best to let Mr Bourne write to Sir D Roberts in fairly discouraging terms and see what Sir D Roberts has to say in reply. But I hope you could make the point to Mr Bourne that Hong Kong is unique, and that its problems tend to call for unique solutions: reference to Colonial precedent is not always helpful.
Ryangdum
11 December 1978
I have up hid
R JT McLaren
Hong Kong and General Department
accordingly Ĥ.R.P.
2
گج
h
Mas guy t
C&
Gregory
12/12/78
jra.
12.12.78
Ru
?
HRA 373/393/3
RELOVED
SOY NO. 51
1 1 DEC 1978
DESK OFFIC
PA
REGISTRY Action Taxe
HOUSE OF LORDS,
SW1A OPW
(38
LORD
IT
CHANCELLOR
4123/102
INDEX
Dear Tag
R. RUSHFO
P.P.3
☺
Judges for Hong Kong
7th December 1978
1.978
Mr Freeland 81440
to
ith McLaren to
d for enhy
81xü
(3) keep e/copy for me.
I have,
Thank you for your helpful letter of 1st December. together with Derek Oulton and Tom Legg, been giving further thought to Roberts' suggestion. My own provisional conclusion is that even if we
did reach a situation where Hong Kong was not able, out of its own resources, to man the Supreme Court Bench with judges of adequate calibre it would still not be right to deal with the situation by increasing the strength of the
High Court here with a view to seconding one or two of the judges to
Hong Kong.
Our view, reached after some consideration, is that, in the
first place, it would be a misuse of the Crown's power to appoint High
Court judges. The Crown is given that power for the purpose of providing a small (now not as small as one could wish) and very high class judiciary for England and quite different provisions have been made under the various colonial constitutions for the provision of judges in the Dependencies.. A High Court judge has a very special position here, since he is virtually irremovable except by Parliamentary process and has very considerable powers.
We do not think that it would be right for the Crown to create a judicial
office with these Attributes for the purpose of his serving in a capacity
for which they were not intended.
Moreover, the very special position of the High Court Bench does, in my view, make it highly desirable to keep its numbers down. Pressure of events has not enabled us to do this to the extent we would wish; if we were now to increase the size beyond the needs of England and Wales, I fear we should depreciate the office of High Court judge. "Go out and govern New South Wales" is not a precise parallel, but you will see what
see
sel
I mean.
LART
REF
137
#F!
39
A. R. Rushford, Esq., C.M.G.