Sir David Maxwell Fyfe, first Earl of Kilmuir, might seem an odd subject for today’s blog.Not only wasn’t he queer, but he worked tirelessly against any attempt to decriminalise homosexuality, and may well have been behind the “pogrom” of the 1950s that deliberately targeted gay men for persecution. It’s easy to look back with a sense of superiority, but his opposition to homosexuals was but a footnote in a life which was generally lived well.
Born in Edinburgh in 1900 to a grammar school headmaster and his second wife, Maxwell Fyfe studied at a Scottish independent school before going on to read the Greats (Literae Humaniores, a Classics course based on the history of human learning) at Oxford. He wasn’t a remarkable scholar, more interested in contemporary politics than the ancients, and achieved only a third-class degree. His education was briefly interrupted in 1918 when he took time out to spend a year with the Scots Guards at the end of the First World War.
After graduating, he worked for the British Commonwealth Union, an anti-trade union, protectionism organisation designed to promote business interests in parliament. He worked as the political secretary to Sir Patrick Hannon MP and studied law in his spare time. He entered Grey’s Inn, a professional association of barristers and judges, and was called to the bar in 1922, joining the chambers of George Lynskey in Liverpool.
In 1924 he entered politics, standing for the northern town of Wigan as a Conservative; a seat he was never going to win. In 1929 he had his eye on Spen Valley, an easier seat for a Conservative to win, but the party decided not to contest the absentee Liberal representative. In 1934 he was made King’s Counsel, the youngest in 250 years. Despite his success in the legal establishment, he tried once again for political office and was finally elected to parliament in 1935, winning a by-election in Liverpool West Derby. In 1936, he was made Recorder for Oldham, a position he held until 1942.
He quickly made an impression in the political sphere, supporting the deeply unpopular Hoare-Lavel Pact which proposed the partitioning of Abyssinia to appease Mussolini’s desire for expansion into the region (the pact never went into effect), and supported appeasement once again during the Munich Agreement, when the Sudetenland was carved up by Hitler’s Germany. However, when Germany breached the agreement and annexed the rest of Czechoslovakia in March 1939, foreseeing war, Maxwell Fyfe joined the Territorial Army. At the outbreak of war in September 1939, Maxwell Fyfe was deployed to the Judge Advocate-General’s division (the department responsible for court martials) with the rank of Major.
A year later, Maxwell Fyfe was injured during an air raid, and after he’d recovered he took a position as deputy-chair of a Conservative committee charged with analysing postwar concerns. In 1942, Sir Winston Churchill appointed Maxwell Fyfe Solicitor-General. He was knighted and sworn into the Privy Council (the special advisers to the monarch) at the same time. In 1942, he took over as chair of the committee, and his attention turned to how the leaders of the Nazi party could be brought to account after the war. On 8th April 1945, just three weeks before Hitler’s suicide and the conclusion of the European war, he attended an Anglo-American debate over a war crimes trial, at which he argued for those found guilty to be executed.
When the war ended, the British coalition government was broken up. Churchill headed a temporary caretaker government (in which Maxwell Fyfe continued as Attorney-General), until a general election was called in July 1945. The Labour party won in a landslide, Clement Attlee took over from Churchill as Prime Minister, and in the new government Sir Hartley Shawcross was appointed Attorney-General and Britain’s chief prosecutor at the Nuremberg Trials.
Shawcross, in a surprising show of bipartisanship, appointed Maxwell Fyfe as his deputy, and left most of the day to day duties of the trials to him. Not known for his dynamism in court, there were concerns Maxwell Fyfe wasn’t up to the task he had been given, but he proved his doubters wrong. His cross-examination of Hermann Göring has gone down as one of the most noted in history. “Faced with sustained and methodical competence rather than brilliance, Goering … crumbled”.
After Nuremberg, Maxwell Fyfe returned to parliament as Shadow Minister of Labour, and continued to work tirelessly in his legal capacity. It was said he would work a full day at the bar, arrive at the House of Commons at 5pm, stay through all-night debates, shave and breakfast and leave again for court. His wife, also a Conservative party employee, assisted him in managing his schedule.
Maxwell Fyfe was a surprisingly moderate Conservative in many ways. He was a leading figure in producing the party’s Industrial Charter, a 1947 pamphlet regarded as seminal for the Conservative reconciliation with the economic and social policies implemented by the Labour government; and he chaired his own committee which produced the Maxwell Fyfe report (1948-9) which shifted the burden of electoral funding from the candidate to the party in an effort to produce a more diverse parliament (because obviously if candidates had to foot the cost of campaigning from their own income, it virtually guaranteed that those standing for political office would be almost exclusively upper-middle class and higher). He supported Labour’s British Nationality Act 1948, which affirmed the rights of Commonwealth citizens to unrestricted entry to Britain, stating “we must maintain the great metropolitan tradition of hospitality to everyone from every part of our Empire.” He was also in favour of European integration (which eventually led to the EU), was a member of the Council of Europe from 1949-1952, and sat in on the committee drafting the European Convention on Human Rights.
In 1951, just twenty months after winning the last election with a slim majority, Attlee called another general election. His aim had been to shore up his party with a stronger majority, but instead Labour lost to the Conservatives. (Not through any fault of their own. Labour secured more votes than any other party — 250,000 more than both the Conservatives and Liberals combined — indeed, they secured more votes than the Labour party has ever won before or since.The reason they lost the election was they’d increased their number of votes in safe seats, but under the first past the post system, had failed to gain new ones. The Conservatives led the new government with a majority of 16.)
Shortly before the election, Maxwell Fyfe made an uncharacteristic gaffe when he said the Conservatives, if elected, would legislate to reduce the power of trade unions. The statement was unpopular, and Churchill decided against promoting him to Minister for Labour in the new government. Instead, Maxwell Fyfe became Home Secretary and the cabinet minister for Welsh affairs. Among the legislation he spearheaded through parliament was that governing the establishment of commercial television.
In 1952, the director of MI5, the Security Services, was made directly answerable to the Home Office, and Maxwell Fyfe lost no time issuing the Maxwell Fyfe Directive, which became the constitution for the Security Services.
It was during his time in the Home Office that Maxwell Fyfe directly influenced the police prosecutions for homosexuality, when he promised “a new drive against male vice” that would “rid England of this plague.” He also courted controversy by refusing to halt the hanging of nineteen-year-old Derek Bentley for the murder of a police officer during an attempted burglary. As a child, the house Bentley lived in had been bombed and collapsed around him. He suffered serious head injuries, which left him with an IQ no higher than 77 (he tested as low as 66), a mental age of ten, a reading age of four, and epilepsy. When discovered attempting to burglarise a warehouse, Bentley’s accomplice shot and killed a police officer. Bentley, already apprehended, had warned the police his accomplice was armed (he himself was in possession of a knife and knuckle dusters, neither of which he used). Nonetheless, both were charged and convicted of murder.
Under the law as it stood (diminished responsibility on the grounds of mental disability would be a valid defence until 1957), the jury had no option but to convict Bentley, although they did so with a plea for mercy on his behalf. Over 200 MPs signed a petition to the Home Office appealing for clemency, but Maxwell Fyfe, after reviewing the case, said he found no good reason for “intervening in the due process of the law”. Bentley was hanged on 28th January 1953.
Despite the opposition to his handling of the Bentley case, and the shift in public mood regarding homosexuality after the Montagu trial, Maxwell Fyfe still came third in a Daily Mirror opinion poll on who was favourite to succeed Churchill as PM (Eden and Butler were first and second. Macmillan a distant fourth). Once it became clear, however, that Eden was to be Churchill’s successor, Maxwell Fyfe sought the position of Lord Chancellor.
In 1954 he got his wish, being elevated to the peerage as Viscount Kilmuir, and to the House of Lords and the Woolsack (quite literally a bale of wool, and the traditional seat of the Lord Chancellor. It was decreed in the fourteenth century the Chancellor would sit on wool to underscore the importance of the wool trade to the economy in the Middle Ages, and England really doesn’t like change. In 1938 it was discovered the Woolsack was actually stuffed with horsehair and it caused quite a scandal before being repacked with wool).
He was a politically active Lord Chancellor, still more interested in government than his judicial role — he only sat as judge on 24 appeals to the Lords in eight years. In 1956 he opposed a private member’s bill to abolish the death penalty, calling it “an unwise and dangerous measure, the presence of which on the statute book would be a disaster for the country and a menace to the people”. He did, however, chair a committee recommending limiting the scope of capital punishment, the conclusions of which led to the Homicide Act 1957, which introduced diminished responsibility and suicide pacts as partial defences, and limited the use of the death sentence (which previously had been mandatory for anyone found guilty of murder).
Through the 1960s, Maxwell Fyfe led the opposition to a number of bills aimed at decriminalising homosexuality, declaring: “I am not going down in history as the man who made sodomy legal.”
Maxwell Fyfe died on 27th January 1967, six months to the day before the decriminalisation of homosexuality received royal assent.