The Treasury Devil

In a recent blog I described Lord Woolf as a former Treasury Devil, only to receive the question:

“What is a Treasury Devil? Sounds wonderful. Is that an official title?”

The “Treasury Devil” was the name given to First Junior Treasury Counsel (Common Law), the member of the junior Bar who used to serve for five years as the advocate retained to represent the Crown in the courts in common law litigation. His counterpart, Junior Treasury Counsel in Chancery matters, was not usually known by the title.

I do not know how far back in history this tradition goes. Certainly, when the young Herbert Asquith, the future Prime Minister, found a pupillage with Charles Bowen[1], later one of the finest common law judges of Victorian times, Bowen was variously described as the Treasury Devil or the Attorney General’s Devil, as was his immediate successor A.L.Smith, who was to be Master of the Rolls for a short period at the turn of the century.

“Devilling” is what a junior member of the Bar still does when preparing first drafts of pleadings or opinions for senior members of chambers, and it has always been the Attorney General who appoints the Treasury Devil, no doubt originally for the same purposes.

In a tribute to Gordon Slynn following his death in 2009 Harry Woolf wrote[2]:

“When Gordon was 38 in 1968, a vacancy occurred in the office of Treasury Junior or Treasury Devil. Gordon was the obvious candidate and he was appointed. Until then he had had a mainly commercial practice, but on his appointment, he had to be prepared to tackle a remarkably wide range of different types of cases.

The Treasury Devil was retained by the Government of the day to appear on its behalf in the great majority of common law litigation. This involved acting for the Government in the great many cases which today would be brought by judicial review against the Government. At that time this litigation was growing rapidly in scale, and this meant that on those days when Gordon was not appearing in the House of Lords or before the Master of the Rolls, Lord Denning, in the Court of Appeal, he was usually to be found occupying the traditional seat of the Treasury Devil in the court of the Lord Chief Justice of England and Wales. This seat was immediately to the left of the central gangway directly in front of the Lord Chief Justice who regularly presided in that court with two other experienced High Court judges who were often themselves ex-Treasury Devils.”

Patrick Neill[3], who shared the same Chambers, wrote:

“My lasting impression of him in those days was of perpetual, frantic oscillation between Chambers and the Royal Courts of Justice, and in particular of the daily ritual at around 10.15 a.m.: the bursting open of the door to his room, the sonorous ablutions (horribly proximate), the shouted commands to pupils to bring this or that, the cramming on of that over-curly-brimmed bowler over his wig-like hair, and the grand exit of HM’s TD[4] trailing a profusion of civil servants, pupils and clerks in varying states of admiration and anxiety.”

By tradition the Treasury Devil was promoted direct to the High Court Bench after his five years were completed without ever becoming a QC, thereby giving him a head start over his contemporaries who reached the Bench by a more conventional route. Gordon Slynn, in fact, broke with tradition by remaining at the Bar, now as a QC, for two more years as Leading Counsel to the Treasury when his successor, Harry Woolf was the new Treasury Devil.  However, this experiment did not work, and it was not repeated until, in more recent years, Philip Sales continued in that role (renamed First Treasury Counsel (Common Law)) for two years after taking silk, and his successor, James Eadie QC, was appointed in January 2009 to the same role without anyone taking the more familiar junior post.

The unusual Divisional Court to which Harry Woolf referred was composed of Lord Parker of Waddington (as Lord Chief Justice) (TD 1945-1950), Mr Justice Ashworth (TD 1950-1954), and Mr Justice Winn (TD 1954-1959).  That was in the days when that court was always composed of three judges when application was being made for one of the three prerogative orders – Mandamus, Prohibition or Certiorari.

I appeared before all of them in my early days at the Bar: indeed, I first encountered Jack Ashworth during three weeks in June 1963 when I was a Judge’s Marshal in the Mansion House at Cardiff which was used at the time of the Assizes as the Judges’ Lodgings.  He was a wealthy bachelor who owned a farm in, I think, Staffordshire, and if you went to stay with him when there was work to be done you paid for your board and lodging by hard labour in the fields, in much the same way as Peter the Great habitually made visiting Ambassadors chop down trees in his forest (often when suffering from a hangover after over-indulging the previous night) before releasing them for less demanding diplomatic duties.

Hubert Parker and his wife came to lunch once at my parents’ home in Hampstead at much the same time. His formidable wife was the mover and shaker behind the campaign to turn the ruined St John’s Church, Smith Square into the concert venue it is today: there is a plaque in the church commemorating her efforts.  It was Lord Parker, himself the son of a law lord, who sentenced the spy George Blake to 42 years’ imprisonment at the Old Bailey, and who introduced a modicum of judicial training for the first time before he left office.  I have described elsewhere my appearance in his court on 6 November 1970.

Rodger Winn, for his part, who had had a very distinguished period of war service in naval intelligence, was a member of a court composed of himself, Lord Denning and Lord Justice Salmon (a future law lord) before whom I successfully appeared on 7-8  March 1969 on a county court appeal in which I persuaded them to set aside an extraordinary finding of fact that the steering wheel of a second-hand car had come off in the driver’s hands while he was negotiating a roundabout. The appeal from a judgment of Mr Deputy Judge Norman Stogden in the Ilford County Court for about £350 came to that court as of right, and I remember those three intellectual heavyweights passing a sample steering wheel up and down the bench during the course of my submissions.

Of the relationship between Rodger Winn’s successor, Roualeyn (“Spider”) Cumming-Bruce (1959-1964) and the Attorney General of the day, Sir Reginald Manningham-Buller QC, it has been written:

“Cumming-Bruce had to work immensely long hours, often well beyond midnight. An initial lack of rapport with Manningham-Buller (‘Bullying Manner’ to less respectful members of the Bar) made the job more onerous still. To begin with, Manningham-Buller never responded to Cumming-Bruce’s written advice. Delivering a closely argued written opinion in person one day, Cumming-Bruce witnessed him throw it away without reading it. A fierce argument ensued during the course of which the papers were retrieved from the waste paper basket, and a useful relationship was established.”

He was assigned, unusually, to the Family Division (initially, to the Probate, Divorce and Admiralty Division before its abolition in 1970) at a time when that Division was being reinforced with intellectual heavyweights capable of mastering the increasing volume of complex family property disputes before his promotion to the Court of Appeal, where I appeared before him at least once in the late 1970s when he was sitting with Lord Denning. On one occasion, when there was a discussion in court about the largest number of civil servants who had ever attended a conference with counsel, he scooped the pool with his memory of an occasion when 22 had turned up to listen to his advice, for want of anything more useful to do.

Nigel Bridge (TD 1964-1968) was next in turn, coming to the job after a junior practice in which planning and local government litigation had played an important part. He received accelerated promotion after four years in the post by dint of being the last barrister entitled to receive all his post-cessation earnings tax-free on retiring from the Bar. He, too eventually became a law lord, and I have described elsewhere, after I had won the case of Wilsher v Essex Health Authority, how he always asked me whether the “blind baby” had received any damages after all,  after the law lords had been constrained to order a new trial when the trial judge, Mr Justice Pain, had made no findings of fact on critical issues in the case.

Most of the subsequent holders of the office – Gordon Slynn, Harry Woolf, Simon Brown (1979-1984), John Laws (1984-1992) and Stephen Richards (1992-1997) were my personal friends. All of them reached the Court of Appeal, with the first three of them also reaching the House of Lords.  John Laws, next in line, must have been one of the most creative constitutional lawyers not to have been promoted to our highest court.  Gordon Slynn became successively Advocate-General and British judge at the European Court of Justice in Luxembourg, and Harry Woolf, after conducting two major inquiries – prison riots and Access to Justice – became successively Master of the Rolls and Lord Chief Justice.

In more recent times I saw a lot of Philip Sales, who was appointed Treasury Devil in 1997 at the age of 35.  He did much to lead my faltering steps through the frontiers of public international law during my final years on the Bench. He, too, is now in the Court of Appeal.  His successor, James Eadie, had not emerged from the shadows when I retired ten years ago. Since his appointment as First Treasury Counsel he has borne the formidable burden of defending Government legislation in the finest possible way at a time when it has attracted considerable odium among those who care for the future of the rule of law.

I will end this blog with one personal memory. For a few days in April and May 1979 it was on the cards that at the age of 42 I might become the next Treasury Devil: indeed, I was interviewed for the job by the incoming Attorney General, Michael Havers.  But dis aliter visum[5] (the gods thought otherwise). He and I had little in common, and the post was very much in his personal gift.  It went to my very old friend Simon Brown who held it with distinction while I was freed for a whole series of absorbing challenges – a job of a lifetime as counsel to the Sizewell B Nuclear Power Station Inquiry, two years in the upper echelons of the new Bar Council, and the conduct of the DTI inquiry into the 1983 Harrods takeover by the Fayed Brothers, for instance.  But while je ne regrette rien, I sometimes wonder what would have happened if I had indeed travelled down the road not taken then.

[1] No doubt through their mutual connection with Balliol, my own Oxford College.

[2] The Lord Slynn of Hadley European Law Foundation: The First Ten Years (Wildy, Simmons & Hill, 2010).

[3] Lord Neill of Bladen QC; Chairman of the Bar, Warden of All Souls; and at one time Vice-Chancellor of Oxford University.

[4] Her Majesty’s Treasury Devil.

[5] Virgil, Aeneid 2, line 428.

8 thoughts on “The Treasury Devil

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  2. When I was training with a Lincoln’s Inn Fields firm of solicitors in the seventies, Harry Woolf was our Counsel of choice for heavy commercial cases – I recall our concerns for our clients when he was made Treasury Devil and was lost to our clients. He was certainly the most impressive Junior I ever came across in over 45 years in practice.

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