TNAG-0262-FCO40-298-Appointments-to-judiciary-of-Hong-Kong-1970 — Page 77

CONFIDENTIAL

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Mr. Scholes is not a strong candidate on merit, for the despatch

containing the recommendation describes the post as "very largely a sinecure" (contrast the attitude when the previous

holder of this post, Sir Ivo Rigby, was being recommended for

Chief Justice) and it is emphasised in the recommendation that

the Chief Justice and the Governor have had regard to the fact

that Mr. Scholes has a comparatively short time to serve before

retirement. The Governor's suggestion that if Mr. Scholes were

appointed Senior Puisne Judge "it should not necessarily be taken

for granted that he will have the strongest claim" to act as

Chief Justice for any extended period, strikes me as illogical, since the whole raison d'être of the post of Senior Puisne Judge

is to provide someone suitable to act as Chief Justice whenever

need arises.

5. While there may very well be some truth in the statement

that the post of Senior Puisne Judge is "very largely a sinecure"

it is misleading in the present context since: the holder of

this post is appointed to act as Chief Justice at least once a year (the Chief Justice takes annual leave); if the Chief

Justice, even though present in the colony, is absent from a

sitting of the full court the Senior Puisne Judge presides in

his place; and in general the tenure of this special post puts

its occupant in a position to be a more influential member of

the judiciary than would otherwise be the case. This is not

therefore a post which should be filled by the next in line. In

my opinion the appointment should go to Mr. Blair-Kerr if we

assume, as I think we probably must, that there is no immediate

prospect of an Appeal Judgeship to which he will be promoted.

If you agree with me that in these circumstances the appointment

should be offered to Mr. Blair-Kerr, the issue will have to be

dealt with firmly and promptly. If it becomes protracted

positions will be taken up and we shall finish by being told

that there is a settled expectation that Mr. Scholes will be

appointed and that any other appointment will cause dismay to the

judiciary, the profession and the general public. I concede

that Mr. Blair-Kerr's appointment might not be to the liking of

the Chief Justice but that is a risk that we ought to be

prepared to take.

6. It seems to me that the best tactics would be for you to

write to the Governor asking him to explainthe dropping of the

proposal for an Appeal Judge, pointing out that this has a

bearing on the appointment to the post of Senior Puisne Judge and making it clear that theimportant criterion in filling the

latter post is merit. When he hears from you the Governor will obviously have to consult the Chief Justice and it would help him if he could show the Chief Justice your letter;

but you will

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