Most senior judges of recent times have stood in the shadow of the famously controversial and interventionist Lord Denning, but on John Donaldson, his successor in 1982 as Master of the Rolls, it was cast further than most. Yet, while his 10 years as Head of the Civil Division of the Court of Appeal and the third most senior judge in England and Wales made more of an impact on legal procedure rather than the actual law, Donaldson was himself no stranger to controversy.
He was criticised for his role as judge presiding over the trial of the Maguire Seven in 1976; and during his time as president of the short-lived National Industrial Relations Court under the Heath government, 182 Labour MPs signed a Commons motion calling for his removal on the grounds of political bias.
Although he was a Conservative, his judicial work at the NIRC did not necessarily betray this, but his career paid the price for it during the subsequent Labour government. In a rare example of political influence in judicial appointments, he had to watch colleagues of lesser ability promoted above him, even though, ironically, his record on civil liberties issues was considered liberal and understanding. Margaret Thatcher soon made up for his years in the relative backwater of the Commercial Court by promoting him to Master of the Rolls a mere three years after he had joined the Court of Appeal in 1979. But then, back in 1966, Donaldson had also been Britain's youngest High Court judge.
Freed of judicial constraints after 1992, he found retirement offered the opportunity to speak out on a wide range of legal issues. His stern defence of the judiciary in relation to anti-terror laws had won him most publicity of late, and he was a regular on the Today programme. When Tony Blair said in July that he expected judges to uphold any new laws, Donaldson told the programme: "It is the judges whose job it is to ensure the government of the day does not exceed its powers."
John Francis Donaldson was born in 1920, the son of a Harley Street gynaecologist. Educated at Charterhouse and Trinity College, Cambridge, where he was the Union's Secretary of Debates, he was commissioned into the Royal Signals in 1941. He served with the Guards Armoured Divisional Signals from 1942 to 1945, and then with the military government in Schleswig-Holstein.
Towards the end of the Second World War, Donaldson - then a lieutenant-colonel - was visiting his mother in hospital in London, when she introduced him to a nurse, Mary Warwick, and Donaldson invited her to the theatre. When they married in Hampshire on his next home leave in 1945, the bride wore a borrowed wedding dress and carried a bouquet of bronzed chrysanthemums.
Donaldson was called to the Bar at the Middle Temple in 1946, where he built up a commercial law practice, with a noted involvement in early restrictive trade practices cases. He spent nine years on the Bar Council and took silk in 1961, becoming a High Court judge in the Queen's Bench Division at the age of 46. But it was his appointment by the Conservative Prime Minister Edward Heath as the first (and only) president of the National Industrial Relations Court in 1971 - described as the graveyard of legal interference in industrial relations - that catapulted him into the public eye.
The court was created by the controversial Industrial Relations Act, which Donaldson had helped draft. It had powers to impose a 60-day cooling-off period in major strikes, and to require unions to ballot members before strike action. Despite aiming to make the court a less confrontational venue, removing formalities such as wigs and gowns, Donaldson found himself branded "Black Jack" and the judge with the "fastest gun in the west" as the court only succeeded in exacerbating bad relations between the government and unions.
Conservative ministers viewed the court as a political instrument, even though publicly they maintained that trade union and Labour Party attacks on Donaldson were an interference with an independent judiciary. When Michael Foot, as Employment Secretary in the following Labour government, moved quickly to abolish the court, he described its president as having a "trigger-happy judicial finger". This was to blight Donaldson's immediate prospects of advancement.
Still, he returned to the High Court, where he was a judge of what has been described as the Hailsham generation. Such judges were said to be characterised by a lack of professional self- criticism, a passionate belief in the traditional procedures and privileges of the Bar and a lack of scepticism towards prosecution evidence.
Donaldson became heavily involved in IRA cases, including that of the Guildford Four, leading him in 1976 to preside over the Maguire Seven trial. They were a group accused of possessing explosives which were then passed on for use by IRA terrorists to make bombs for the Guildford and Woolwich attacks. He handed down hefty sentences on all, including Giuseppe Conlon, who died in prison and whose case was made famous by the 1993 film In the Name of the Father.
The gathering furore over the case eventually led to a review by Sir John May and in 1990 he was critical of the judge's handling and understanding of the evidence. Donaldson was not invited to appear before the inquiry on the ground that judges could not expect to be cross-examined. The convictions were quashed in 1991 but the Court of Appeal stopped short of ruling that there had been a miscarriage of justice.
In the meantime, however, the return of a Conservative government meant that Donaldson finally became a Lord Justice of Appeal in 1979. Three years later, the post of Master of the Rolls became vacant upon Lord Denning's retirement. Margaret Thatcher wanted to appoint Donaldson, but Lord Hailsham, then the Lord Chancellor, did not agree, having taken soundings from other senior judges. Thatcher asked Hailsham to remind her whose appointment it was, and upon being told it was hers, she chose Donaldson.
Shortly afterwards, completing an annus mirabilis for the Donaldson family, Mary Donaldson became the first woman Lord Mayor of London, as part of a long life of public service. Theirs was a remarkable partnership. Although they were both strong in intellect and character, each loyally supported and played consort to the other in their respective high offices. Mary was appointed GBE in 1983; her husband became a life peer in 1988, taking the title Lord Donaldson of Lymington.
Following Denning was not an easy task. John Donaldson once described his predecessor as "an old man in a hurry" but their different approaches meant comparisons were largely redundant. While Denning enjoyed the limelight, Donaldson later explained the advantages of wigs and gowns in court. It meant the juror who saw him "shopping in Woolworths in plain clothes had not the slightest idea" who he was. None the less, he used the media skilfully. He began issuing an annual report on the work of the civil division, was available to the press and won a reputation for being the most approachable of the senior judges - he even listed his home telephone number in Who's Who.
But for all he sat in many cases of note - he had to traverse largely untrodden territory in medical ethics, the rights of juveniles and of disabled people, was involved in Spycatcher and condemned the £600,000 libel damages awarded to Sonia Sutcliffe against Private Eye - his was not an especially memorable tenure from the perspective of English jurisprudence. His main achievement by his own admission was to modernise the practice and procedure of the Court of Appeal.
Throughout, he was concerned about the backlog of appeals in his court caused by insufficient resources, and it was the subject to which he returned at a valedictory in his court in 1992, with the Lord Chancellor Lord Mackay of Clashfern sitting next to him. He said he regretted not being able to provide his successor with a better inheritance.
Donaldson retired just short of his 72nd birthday, at a time when judicial retirement age was a topic of debate. Although he said he agreed, at least in principle, with judges hanging up their wigs at 70, his retirement was driven more by the realisation that he had been on the bench longer than any other higher court judge at the time. "The Court of Appeal has had enough of me and I've had enough of the Court of Appeal," he said.
Known in court for sucking boiled sweets with his wig at an angle, Donaldson was quick to bring barristers before him to the point. "[His mind] might have looked like the North Face of the Eiger," said the Attorney-General Sir Nicholas Lyell QC when the judge retired, "but a good argument soon found some friendly footholds and a hoist to the summit". There were some, however, who thought he cut legal argument too short and jumped to conclusions, due perhaps to an over-zealous desire for efficiency. While not the most profound legal thinker, his judgments displayed an ability to seek out the less obvious solutions.
He had a long-standing interest in maritime law - he was a keen yachtsman in his spare time - and his most striking contributions after he retired were in this field. His recommendations as chairman of the inquiry set up after the tanker Braer ran aground off the Shetland Isles in 1993 were widely praised. Donaldson conducted a further review into the powers of state intervention and the command and control of salvage response following the Sea Empress disaster in 1996.
He held a variety of other posts, from quasi- judicial, such as on the appeals panel of the London Metal Exchange, to law reform. He chaired the Financial Law Panel for the decade of its existence and was highly critical when its work ended in 2002 due to funding cuts from the Bank of England. Donaldson took a close interest in the Labour government's constitutional reforms - submitting lengthy personal responses to consultations - and made regular contributions in the House of Lords. In the fortnight before his sudden death, he had letters published in The Times and the Law Society's Gazette on the latest anti-terror proposals.
When presiding as a judge, John Donaldson always made a point of walking into court very briskly, writes Tom Bingham. He felt that this set the pace for the proceedings which followed.
And in his court the pace was never leisurely. He liked argument to be short and to the point, and he had little stomach for over-refinement or verbosity. He had a quick and original, sometimes rather quirky, mind, which he would, on occasion, change with unnerving rapidity. It was unwise, sitting with him, to undo one's seat-belt.
But his brisk, modern, no-flannel approach was immensely valuable. It was largely due to his energy and appetite for business that the Commercial Court flourished and expanded as never before. If counsel appeared to ask for a case to be heard expeditiously, he was apt to respond: "I'm free this afternoon, what about you?" The National Industrial Relations Court was convened for an emergency hearing on a Saturday evening. Asked to reduce scandalous delays in the Queen's Bench Divisional Court, Donaldson cleared the list within a few months. His judicial colleagues sat with him for a week or two at a time, unable to stand the pace for any longer.
On becoming Master of the Rolls on the retirement of Lord Denning, he introduced much-overdue reforms in the administration of the Court of Appeal: unlike many judges, he enjoyed administration, and was restless in his search for administrative efficiency. It was he who introduced the handing down of reserved judgments, which up to then had been read aloud, at a high cost in time and tedium. It was typical of him that he furnished the Master of the Rolls' room with modern furniture, and even in the days when almost everyone in the Temple wore a bowler hat, he never did.
To those who picture all judges as slow, fuddy-duddy and set in their ways, one can only say: you should have seen John Donaldson.Reuse content