Is that a fair reflection of his life and contribution as the holder of five of the great offices of State and a “[politician] of the first importance and potential leader of [his] party”?[i] At first blush readers may however wonder why this Edinburgh born barrister and politician, whose peerage title forever links him to a small Scottish village to the east of Invergordon, warrants inclusion. There are three answers. First, David Maxwell Fyfe’s pupillage and first tenancy were conducted in Liverpool at the Chambers of George Lynskey.[ii] Secondly, Maxwell Fyfe sat as a Member of Parliament for the West Derby division of Liverpool from 1935 (elected unopposed) until his elevation to the peerage in 1954. Finally, and perhaps most importantly for the Law School anniversary, the University of Liverpool awarded Kilmuir an LL.D in 1947. These factors merit his inclusion. This is fortuitous as the Earl of Kilmuir’s legacy is most closely related to his having been responsible for drafting the European Convention on Human Rights (ECHR) amongst other noteworthy contributions to national and international law reform.[iii] He was also a keen European in a broader context. He also produced the Kilmuir Rules. These rules contained the background to the judicial convention that judges should not speak to the press about their legal opinions so as to ensure judicial impartiality.
David Maxwell Fyfe will be referred to by that nomenclature until he was elevated to the peerage on 19 October 1954. He will then be referred to as the Earl of Kilmuir, his final title in the nobility. As Dutton has noted Kilmuir is the name of the village, “near where his mother was born.”[iv]
With David Maxwell Fyfe we will examine his contribution to the common law generally and touch on similarities between the two Liverpool Lord Chancellors (Birkenhead and Kilmuir) and test whether the Earl of Kilmuir was familiar with, and inspired by, the life and career of the 1st Earl of Birkenhead, Gray’s Inn’s second Lord Chancellor after Sir Francis Bacon (Viscount St Albans). Most importantly though, we will examine Maxwell Fyfe’s Liverpool connections.
The Earl of Kilmuir – A biographical sketch
As noted above, David Maxwell Fyfe was born in Edinburgh in 1900. His father, William Thomas Fyfe, was an inspector of schools and former headmaster. His mother, Isabella Campbell, was a school teacher. The young David received his initial education at George Watson’s College. Balliol College in the University of Oxford soon followed when he went up in Autumn 1917 to read Greats, Oxford’s classics degree. His studies were not a success. He obtained a Third class degree in 1921, politics and the Oxford Union proving formidable distractions. This performance is perhaps at odds with what one biographer has referred to as “his enormous industry and apparently insatiable appetite for paperwork...”[v] Or, alternatively, Maxwell Fyfe’s University performance may have laid the foundations for the hardworking ethos that emerged in later life. Indeed, reflecting on this time at University, his “undistinguished Degree”[vi] and his prioritisation of Conservatism and the Union, above College work and fitness, he noted, “I wish I had worked harder – but there it is.”[vii]
David Maxwell Fyfe then progressed along similar lines to his predecessor on the Woolsack, namely, Lord Birkenhead, following in his footsteps to the same Inn of Court as a pupil barrister. Maxwell Fyfe was called to the bar on the 28th June 1922 by the Honourable Society of Gray’s Inn.[viii] He would successively become a Bencher in July 1936 and the Treasurer in 1943. On his election as a Bencher the Gray’s Inn’s periodical GRAYA noted, “He is a member of the Northern Circuit from which so many great lawyers have succeeded to the Bench of Gray’s Inn.”[ix]
The 15th of April 1925 was a happy day for William Harrison, a Liverpool engineer and his actor son Rex Harrison,[x] not least because Rex’s sister Sylvia Margaret (who died in 1992) married David Maxwell Fyfe and in so doing would become the future Countess of Kilmuir. The union begot three daughters (Lalage, Pamela and Miranda, “the eldest of whom died when still at school as the result of a tragic cycling accident.”[xi]). Following Maxwell Fyfe’s death Sylvia would go on to marry Herbrand Edward Dundonald Brassey Sackville, the 9th Earl De La Warr. In so doing she would become a “Double Countess” in addition to being a Dame in her own right, the honour being awarded to her for her services to the Conservative Party.
Again much like his predecessor Lord Birkenhead, David Maxwell Fyfe embarked on a career in both politics and the law and just like his FE he was full of ambition. At the end of his legal career (discussed below) Lord Rea paid tribute to the recently sacked Lord Chancellor by recalling a conversation that occurred in Liverpool some decades before in which the then David Maxwell Fyfe revealed his aspirations to “take silk in his early thirties, be a Minister of the Crown in his early forties, and to be top of the legal profession…in his early fifties.”[xii] Success was indeed swift. Maxwell Fyfe took silk on 16th February 1934, at the tender age of 34, an incredible achievement judged by contemporary norms as well as the present day,[xiii] purportedly the youngest King’s Counsel in 250 years.[xiv] His youth certainly made an impression on the Lord Chancellor, Lord Sankey, at the swearing in session. Lord Sankey remarked “You are very young.”[xv]
Eleven and a half years earlier Maxwell Fyfe went to Liverpool at the age of twenty-two and a half. By that stage he had already met a great number of eminent political men through his time at Oxford (e.g. Balfour, Asquith, Baldwin, Churchill). Crucially, he had also met a number of luminaries in his own profession, including Lord Reading (Rufus Isaacs) and FE Smith whom he had also heard speak.[xvi] Of FE he was later to observe, “They [FE and Churchill] were so actively conscious of their force and dialectical ability. No one could equal FE in the spontaneously incisive phrase…”[xvii]
So how did Maxwell Fyfe end up in Liverpool? Was it because of the City’s attraction as a “magnet for the Irish and Welsh in particular, but also for the Scots” (of which Maxwell Fyfe was one) as Bryce has opined, or, is the reason a familiar one with vestiges that survive to this day. On this formative period Maxwell Fyfe noted:
“…Again there occurred one of the turning points of my life. An old friend, Judge Dowdall, whose acquaintance I had made at Oxford, had became County Court Judge at Liverpool. He was a Liverpool man and had been at the local Bar there…He…suggested to me that, as I was short of money, it would be a good thing to go to a local Bar where there was a chance of an earlier acquisition of work.”[xviii]
So it was that Maxwell Fyfe entered Chambers in December 1922 at 25 Lord Street (the same address FE Smith had occupied) with Harold Lynskey (later Mr Justice Lynskey) and his pupil master designate Howard Jones, aided by a Gray’s Inn pupillage award of 100 guineas and £5 per month from his mother. He joined the Northern Circuit in January 1923. Maxwell Fyfe described the workings of the Northern Circuit “one of the greatest of legal institutions” in the following way:
“At the beginning of the 1880s junior barristers began to settle in Liverpool…whose enormous concentrations of population required immediate attention for their law cases and men on the spot to whom solicitors could go for advice. The Liverpool Bar, although of that comparatively recent growth, had had a very distinguished crop of men.”[xix]
Some reflections on his early career in Liverpool can be garnered both from his memoirs but also for other sources such as Hansard. Speaking in the House of Commons in 1948 he recalled his contact with the criminal elements and how these sustained his belief in the death penalty’s continued use:
“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…the ordinary runs of these fellows, the thing that keeps them from giving an old lady a crack over the head…is fear that if they go too far then ‘the 8 o’clock ‘walk’ may well await them.”[xx]
Maxwell Fyfe’s early case load involved subjects as disparate as defending in Sefton Park indecent assault cases, County Court briefs for tenants trying to prevent eviction through the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, murder cases at the Manchester Assizes, prosecuting Whitehaven rioters, defending moneylenders, defending Edge Hill kidnappers, defending sadistic stranglers, and defending in the famous Ruxton murder case.
Maxwell Fyfe’s judicial career, such as it was (see (2) below), commenced with appointment as the Recorder of Oldham in 1936.[xxi] On the outbreak of the Second World War he joined the Judge Advocate-General’s department. A post he held until 5th March 1942 when he was appointed Solicitor-General.[xxii] He joined the Privy Council and received the customary knighthood. Promotion followed, albeit briefly, on 29th May 1945 with appointment as Attorney-General. During Maxwell Fyfe’s first appearance in the House of Lords as Attorney-General Lord Simon, sitting with Lord Russel of Killowen, said, “Sir David, we observe that you have become Attorney-General. This House takes no cognizance of such changes of office. On the other hand, we also observe that today is your birthday. We have pleasure in wishing you “Many happy returns”.[xxiii] As is well known Churchill was unceremoniously swept from power by a Labour landslide in July 1945. So as to solidify the non-political nature of the Nuremberg trials Sir Hartley Shawcross KC (as he then was, later Lord Shawcross QC) appointed Maxwell Fyfe as the deputy Chief British prosecutor. As one biographer has noted this shone a light on Maxwell Fyfe’s qualities as a “‘capable lawyer, efficient administrator and concerned housemaster.”[xxiv]
With peace came a period in opposition. Government, with a ministerial post as Home Secretary, followed in 1951.[xxv] His period in office was controversial, as Duxbury has noted in relation to opposition to legalising homosexuality, the handling of the Suez crisis, and the abolition and use of the death penalty.[xxvi] In relation to the later the Bentley case and the John Christie murders (recently dramatised in the BBC series ‘Rillington Place’ featuring Tim Roth reprising Lord Attenborough’s 1971 portrayal of the villainous Christie) stand out as inauspicious periods in Maxwell Fyfe’s Ministerial career.[xxvii] Timothy Evans was hanged for his wife and child’s murder in 1951. He was given a posthumous pardon in 1966 as Christie was held responsible for their deaths out of a total of eight murders. Christie has been a prosecution witness at Evans’ trial. In another controversial brush with the death penalty Maxwell Fyfe refused to reprieve the troubled Derek Bentley who was hanged for the murder of PC Sydney Miles in January 1953, whilst the juvenile perpetrator Christopher Craig, was merely imprisoned despite having fired the fatal shot into the married policeman and father of two.[xxviii] These episodes were not however sufficiently damaging to preclude elevation to the Woolsack. Indeed, Bryce has noted, perhaps at odds with Duxbury, of Maxwell Fyfe’s tenure as Home Secretary, “I think that Fyfe compared very favourably with any Home Secretary of modern times.”[xxix] Taking the title Viscount Kilmuir he succeeded Lords Simmonds as Lord Chancellor on the 19th October 1954.[xxx] Gray’s Inn gave a dinner in his honour on the 9th December 1954 which was attended by, inter alia, the HRH the Duke of Gloucester, Sir Hartley Shawcross and Mr Justice Devlin.[xxxi]
The Earl of Kilmuir had three impactful relationships in the wider European sphere that go beyond his Nuremberg work. This is a particular theme of Duxbury’s recent biography. The Earl was one of the draftsmen of the ECHR. He was also both a member of the committee of the United European Movement and a member of the assembly of the Council of Europe. In was in the latter capacity that he contributed to the drafting of the ECHR. Duxbury, who has called the Earl of Kilmuir a “committed European” goes on to spend a significant part of his biography discussing the Earl of Kilmuir’s forward looking European stance. Recent attempts by senior members of the Conservative party to repeal the Human Rights Act 1998 would perhaps have the Earl of Kilmuir spinning in his grave.[xxxii]
In terms of character Duxbury has noted that Maxwell Fyfe 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.”[xxxiii] He also had a reputation for being dull and gloomy as the poem cited in the introduction (above) demonstrates. He did however have a self-deprecating sense of humour, noting in his biography his change in physical appearance since his Rugby playing days at Oxford; “I was only too conscious that my waist-line had by then commenced a career of its own.”[xxxiv] Bryce, who knew Maxwell Fyfe, has noted that “In so many ways he [Kilmuir] was the exact opposite of Liverpool’s other Lord Chancellor, Lord Birkenhead….Fyfe was solid, unathletic, slow moving, slow talking, kind at all times, and patently sincere.”[xxxv] In terms of physicality Bryce continues, “He was already becoming corpulent; his voice was slow, and rather monotonous, almost dreary. He had a large and rather Teutonic type of head.”[xxxvi] Finally it was noted by a leading member of Gray’s Inn on Kilmuir’s death that, “I never heard him say an unkind word about anybody.”[xxxvii]
Common Law contribution as Lord Chancellor
The Earl of Kilmuir sat in a judicial capacity for seven years commencing his tenure on 2 March 1955.[xxxviii] His last contribution to his “meagre judicial output”[xxxix] occurred on 16 July 1962.[xl] David Maxwell Fyfe certainly contributed to the development of statute, perhaps most notably with Lord Jowitt’s Children's Allowance Bill,[xli] the Transport Act 1947, and the Homicide Act 1957, which abolished the death penalty. The Occupiers Liability Act 1957 can also rightfully be claimed as a Kilmuir creation.
But what of David Maxwell Fyfe’s common law contribution? If Lord Birkenhead’s contribution to the common law was pond like in its shallowness, then it could be argued that Lord Kilmuir’s was more akin to a puddle formed in a mid-1950s rain storm. A perusal of the official law reports shows that he was present on the panel in a grand total of twenty-five cases including five Privy Council cases (in which he didn’t provide the written opinion). His name also appears in one Practice Direction.[xlii] This might explain why one biographer has noted, “Kilmuir was not among the great lord chancellors of recent history.”[xliii] As Figure One shows within this case law selection the Earl of Kilmuir did give substantive opinions in the House of Lords.[xliv] In at least one case Rose Heilbron QC appeared before him.[xlv] She would go on to become the future Mrs. Justice Heilbron. In terms of the Earl of Kilmuir’s judicial contribution it is surprising, as Duxbury has noted,[xlvi] that he did not as head of the judiciary cause more cases to come before him.
His opinions amount to 65,145 words and range over various topics. These included, inter alia, health and safety at work, causation, income tax valuation and penalties, automatism as a defence in criminal law, income tax, intention in murder, bills of lading, consumer law and discrimination, trusts, negligence, insurance, sale of goods, frustration, gifts, directors’ powers and duties, and intestacy.
Figure One: Lord Kilmuir’s opinions in the House of Lords
|
Substantive Opinions |
Practice Directions |
Concurring Opinions |
Total |
|
25 |
1 |
o |
26 |
Figure Two: Word Cloud of Lord Kilmuir’s opinions
.jpg)
There is no doubt that these contributions are on the relatively light side, particularly when compared to his immediate predecessor, Lord Simmonds. This is unsurprising. Politics dominated the Earl of Kilmuir life, the law was relatively unimportant. Just as Greats had been neglected at Oxford during his undergraduate days, his judicial work also languished. There is alternative view and that is that quality made up for quantity. In that as compared to Lord Birkenhead, for example, the Earl of Kilmuir gave full substantive opinions in the great majority of his reported cases.
When the “knight of the long knives” (12 and 13 July 1962) resulted in Lord Kilmuir’s removal from office at the age of 62. He was compensated with an Earldom (1962) to add to his Viscountcy (1954), knighthood (1942), membership of the Privy Council (1945) honorary degrees (Liverpool, Oxford, Edinburgh, Wales) and other baubles, such as the Knight Grand Cross of the Royal Victorian Order (1953). He was replaced on the Woolsack by Reginald Manningham-Buller, the 1st Viscount Dilhorne (Lord Chancellor from 1962-1964 and father of the second female Director General of MI5, Dame (now Baroness) Eliza Mannigham-Buller). It has been noted that, “After leaving office Kilmuir caused some surprise by accepting appointment to the board of Plesseys, an unusual step for a former lord chancellor.”[xlvii], Lord Chancellors accepting directorships was certainty not without precedent. Lord Birkenhead had also taken up directorships post retirement. As Professor Sir David Cannadine has shown Dukes and other members of the nobility frequently took up these commercial positions.[xlviii]
Conclusion
The Earl of Kilmuir certainly had an illustrious life. There are a number of artistic representations of the Earl of Kilmuir by way of memorial to demonstrate this. These include portraits at the Honourable Society of Gray’s Inn,[xlix] St Anne’s College[l] and Balliol College, Oxford,[li] and photographs in the National Gallery.[lii] A memorial in his honour also exists in the Parish Church of Withyham in Sussex. Kilmuir’s home was in the parish and it was there that he died in January 1967. The former keeper’s cottage was situated in the 100 acres wood of AA Milne fame.[liii] Kilmuir’s voice and moving image are also preserved for posterity by the various Pathe and Associate Press newsreels from the Nuremberg trials. These snippets are usefully retained on media platforms such as YouTube.[liv] This is how we remember the life and work of the Earl of Kilmuir, one of the authors of the European Convention on Human Rights.
References
[i] Underhill, N. The Lord Chancellor – Officers of State. Terence Dalton Ltd, Suffolk, 1978, p.199.
[ii] See further: Bryson, G. Lynskey. Sir George Justin (1888–1957). Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2011.
[iii] For a discussion of modern ECHR issues see for example: Dzehtsiarou, K. European consensus and the legitimacy of the European court of human rights. Cambridge University Press, Cambridge, 2015.
[iv] Dutton ODNB.
[v] Dutton ODNB.
[vi] Kilmuir Adventure, p.24.
[vii] Kilmuir Adventure, p.16.
[viii] See Kilmuir Adventure, pp.20, 25.
[ix] GRAYA, The Honourable Society of Gray’s Inn, London, vol.18, p.6.
[x] See further: Richards, J. Harrison, Sir Reginald Carey [Rex] (1908–1990). rev. Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2017.
[xi] “In memoriam – The Master the Earl of Kilmuir”, GRAYA, The Honourable Society of Gray’s Inn, London, vol.65, p.14.
[xii] Lord Rea, House of Lords Hansard, Debates, 17 July 1962, vol.242, col.531.
[xiii] Sainty, J. A List of English Law Officers, King’s Counsel and Holders of Patents of Precedence. Selden Society, London, 1987, p.188. Hereafter Sainty Officers.
[xiv] Duxbury Kilmuir, p. 3.
[xv] Kilmuir Adventure, p.37.
[xvi] Kilmuir Adventure, p.21.
[xvii] ibid, p.23.
[xviii] Kilmuir Adventure, p.25.
[xix] Kilmuir Adventure, p.26.
[xx] HC Deb 14th April 1948, vol 449, cols 1080-81, cited in: Duxbury Kilmuir, p.36.
[xxi] Dutton ODNB.
[xxii] See: Sainty Officers, p.72.
[xxiii] Kilmuir Adventure, p.77.
[xxiv] Dutton ODNB, citing, Tusa and Tusa, 136).
[xxv] For a full discussion of the Earl of Kilmuir’s politics see Duxbury Kilmuir, Chapters 4&5. See also:
[xxvi] Duxbury Kilmuir.
[xxvii] ibid.
[xxviii] ibid.
[xxix] Bryce Kilmuir, p. 141,
[xxx] See: Sainty Officers, p.55.
[xxxi] “The House Dinner to Master the Viscount Kilmuir of Creich” GRAYA, The Honourable Society of Gray’s Inn, London, vol.41, p.20.
[xxxii] See for example: “Human Rights Act will be scrapped in favour of British Bill of Rights, Liz Truss pledges” by Michael Wilkinson, The Daily Telegraph, 22 August 2016.
[xxxiii] Duxbury Kilmuir, p.2.
[xxxiv] Kilmuir Adventure, p.13.
[xxxv] Bryce Kilmuir, p.137.
[xxxvi] Bryce Kilmuir, p.139.
[xxxvii] “In memoriam – Master the Earl of Kilmuir”, GRAYA, The Honourable Society of Gray’s Inn, London, vol.65, p.13.
[xxxviii] Hynd's Trustee v Hynd's Trustees, No. 1, 1955 S.C. (H.L.) 1
[xxxix] Duxbury Kilmuir, p.5.
[xl] Wigley v. British Vinegars Ltd [1962] 3 W.L.R. 731, [1964] A.C. 307.
[xli] Earl of Kilmuir tribute to the late Earl Jowitt, Hansard, HL Deb 29 October 1957 vol 205 cc523-35.
[xlii] Practice Note, B. v B. (No. 2) [1955] 1 W.L.R. 557.
[xliii] Dutton ODNB.
[xliv] His substantive opinions appear in the following reports: Wigley v British Vinegars Ltd [1962] 3 W.L.R. 731; Mcwilliams v Sir William Arrol & Co. Ltd. and Another [1962] 1 W.L.R. 295; Australian Mutual Provident Society v. Commissioner of Inland Revenue [1961] 3 W.L.R. 1313, [1962] A.C. 135; Bratty; v. Attorney-General for Northern Ireland [1961] 3 W.L.R. 965, [1963] A.C. 386; Verdin and Others v Coughtrie (Inspector of Taxes) [1961] 2 W.L.R. 318, [1961] A.C. 880; Director of Public Prosecutions v. Smith [1960] 3 W.L.R. 546, [1961] A.C. 290; Arbuckle Smith & Co. Ltd v. Greenock Corporation [1960] 2 W.L.R. 435, [1960] A.C. 813; Inland Revenue Commissioners v. Hinchy [1960] 2 W.L.R. 448, [1960] A.C. 748; Maxine Footwear Co. Ltd. and Another. v. Canadian Government Merchant Marine Ltd [1959] 3 W.L.R. 232, [1959] A.C. 589; Same v British Oxygen Gases Ltd [1959] 1 W.L.R. 587; Mortimer v Samuel B. Allison Ltd [1959] 1 W.L.R. 330; B. S. Lyle Ltd. v Rosher and Others [1959] 1 W.L.R. 8; Cade Appellant; v British Transport Commission [1958] 3 W.L.R. 118, [1959] A.C. 256; Percy Simons Trading As Acme Credit Services v Anthony Eugene Middleton Gale on Appeal from the Supreme Court of New South Wales [1958] 1 W.L.R. 678; Canadian Pacific Steamships Ltd; v. Bryers [1957] 3 W.L.R. 993, [1958] A.C. 485; Attorney-General for Australia; v. The Queen and the Boilermakers' Society of Australia and Others [1957] 2 W.L.R. 607, [1957] A.C. 288; G. H. Renton & Co. Ltd v. Palmyra Trading Corporation of Panama [1957] 2 W.L.R. 45, [1957] A.C. 149; Vine v. National Dock Labour Board [1957] 2 W.L.R. 106, [1957] A.C. 488; London County Council v. Wilkins (Valuation Officer) [1956] 3 W.L.R. 505, [1957] A.C. 362; A. v. Pound & Co. Ltd. v. M. W. Hardy & Co. Inc. [1956] 2 W.L.R. 683, [1956] A.C. 588; Florence Emma Ward and Others v. Commissioner of Inland Revenue [1956] 2 W.L.R. 578, [1956] A.C. 391; Perpetual Trustee Company (Limited) v. Pacific Coal Company Pty. Limited [1956] 2 W.L.R. 105, [1956] A.C. 165; Harold Holdsworth & Co. (Wakefield) Ld. v Caddies [1955] 1 W.L.R. 352; Ross's Judicial Factor v Martin, No. 3, 1955 S.C. (H.L.) 56; Hynd's Trustee v Hynd's Trustees, No. 1, 1955 S.C. (H.L.) 1
[xlv] See: Canadian Pacific Steamships Ltd. v .Bryers [1957] 3 W.L.R. 993, [1958] A.C. 485.
[xlvi] Duxbury Kilmuir, p. 3.
[xlvii] Dutton ODNB.
[xlviii] See: Cannadine, D. The decline and Fall of the British Aristocracy. Yale University Press Yale, 1990. See also: Duke of Manchester. My Candid Recollections. Grayson & Grayson, London, 1932.
[xlix] By S. Elwes, portrait, Gray's Inn, London · See further: “The Chancellor’s Portrait”, GRAYA, The Honourable Society of Gray’s Inn, London, vol.45, p.6.
[l] A. C. Davidson-Houston, portrait, St Ant. Oxford.
[li] C. Sanders, portrait, Balliol Oxford.
[lii] W. Stoneman, photograph, 1946, National Portrait Gallery (NPG); Elliott & Fry, photograph, 1954, NPG, and: W. Bird, photograph, 1962, NPG.
[liii] “Kilmuir Memorial” GRAYA, The Honourable Society of Gray’s Inn, London, vol.67, p.5.
[liv] See for example Maxwell Fyfe’s cross examination of Herman Goering: https://youtu.be/CJQNi0snLV0
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