He favours a Ministry of Justice; he dismisses plans for a register of judges’ interests as “absolutely mad”; he claims to be overworked and troubled by writer’s block when penning 100-page judgments; the Pinochet affair was disastrous. And so it goes on…
Lord Browne-Wilkinson is giving his first interview since being appointed senior Law Lord in September. He has a lot to say and you get the feeling he has been yearning to get a few things off his chest.
Browne-Wilkinson is well-known for trying to dodge the media. He was thrust into the public limelight during the Pinochet debacle in which his fellow Law Lord, Lord Hoffmann, failed to disclose his link to Amnesty International.
Browne-Wilkinson ruled a second hearing was necessary in order for justice to be seen to be done. It was an admirable and courageous decision, but one which for the first time cast doubt over the Law Lords’ credibility.
While he dodges questions about the Hoffmann affair, Browne-Wilkinson, it transpires, is more than willing to give his opinion on the Pinochet case and its seismic effect on the UK judicial system.
The interview, in a sense, is damage limitation. “The reason I am in this at all is to try to get people to understand a little more about what goes on here,” explains the 69-year-old. “The Pinochet case had so many emotional overtones attached to it. It has been for the worse because we have come up not looking too bright. I would rather we came out of it looking a little more full of intelligence.
“One thing I would love to get clear about Pinochet is all we were doing was deciding two questions of law. People think you must be either for or against Pinochet but you don’t decide the case that way. It is surprising how many people don’t realise it has to do with the law, not just your individual preferences.”
That may well be true, but the case caused an extraordinary political furore, dragging the previously distanced Law Lords headlong into the political arena. There has been a detailed examination of the judicial system, including demands for judges to register their interests and calls for them to be made accountable. Browne-Wilkinson – described by barristers who come before him as an “old-fashioned” judge, a kind of liberal but paternalistic Tory grandee – is quick to voice his objections.
Of the register of interests, he says: “It is absolutely mad. I am not quite sure what I ought to register. What one needs to do is just state relevant interests when you have got them.” Exactly, of course, what Hoffmann so famously failed to do.
As to accountability, the senior Law Lord says: “That is a word I distrust. It means they have to explain themselves to somebody who is presumably able to do something about it if they don’t like what the judges have explained. Do you really want your judge to have to account to somebody who can tell him what to do?”
These are extraordinary times for the Law Lords. The Human Rights Act, which will incorporate the European Convention on Human Rights into UK law, has made the 12 Law Lords – and Browne-Wilkinson in particular – remarkably powerful men. Increasingly, they are making legal decisions with far-reaching political and social consequences.
Moreover, the European Convention brings into focus the intense conflict of interest between having the Lord Chancellor as head of the independent judiciary and as a powerful member of the executive. Browne-Wilkinson appreciates the conflict and sees an independent Ministry of Justice as the only solution.
“It is quite difficult to see how the Lord Chancellor is going to survive as a judge doing both jobs,” he says.
“I would quite happily go to a Ministry of Justice and quite probably we will have to be forced to do something in the near future.”
The scrapping of the House of Lords is another signal of changing times. The Law Lords currently have the right to vote and speak in the upper chamber and Browne-Wilkinson is happy to do so, although he struggles to recall the last time he did. It was, he thinks, before Labour came to power. He makes the distinction between voting on matters of legal and political significance, seeing the former as part of his role but the latter as outside his remit. However, as the Hoffmann affair so vividly demonstrates, the line is often grey.
With the future of the second chamber still a matter of debate, the Law Lords must wait and see what happens.
Browne-Wilkinson is not one of the peers desperate to hold onto his seat in the chamber. “I suspect we will no longer belong to what is in place after the House of Lords. Effectively, what we are now is exactly the same as the American Supreme Court. We are the final court of appeal on all matters in the United Kingdom and it is pure history that has landed us where we are and it is much more logical to set us out as an independent court like the Supreme Court.”
He is, one suspects, envious of the Supreme Court and especially the powerful support teams that serve the US judges. He is quick to point out he has “one-third” of a secretary at his disposal – and that’s it. A sweeping hand across his sizeable, high-ceilinged, book-lined room indicates the expanse of papers he must plough through for his next case. In the US, he says, the justices have as law clerks the brightest law students fresh out of college and eager to work for a Supreme Court judge. Such a system, Browne-Wilkinson is convinced, would suit him nicely.
Instead he is left to write judgments – occasionally running to hundreds of pages, “which is the real killer” – in laborious longhand, before dictating them onto audio tape for his secretary to type up because, he admits, nobody can read his writing. What is worse, he says, “writer’s block is a permanent state”.
“I am not a quick writer. An awful lot of what we are dealing with is policy. You are not just being an ordinary lawyer saying what the law is; you are saying what the law should be. I find that much more difficult, much more difficult to be sure I have got that right.”
While other, younger Law Lords are described variously as aggressive and intimidating, one QC describes Browne-Wilkinson as “humane”. Another says: “Nobody has a bad word to say about him.”
He is rarely less than affable. Certainly, in interview, he is gracious and friendly. Known as “Nico” to family and friends – his full name is Nicolas Browne-Wilkinson – he is the son of a Church of England clergyman, as were generations before him. “I let the whole side down,” he says of his decision to become a lawyer. He was called to the Bar in 1953, becoming a chancery silk in 1972.
He refuses to talk about his private life except to say he has five children, one of whom, Simon, has just been made a QC. But Who’s Who reveals he has been married twice, the second time in 1990 following the death of his first wife three years previously. He was educated at Lancing and then Magdalen College, Oxford. His hobby is gardening.
He is so typically white, male, upper-middle class and Oxbridge-educated, that it is perhaps to his credit that he laments the lack of women and ethnic minorities in the upper echelons of the judicial system. “I know from my own personal experience of three or four outstanding women offered High Court appointments who have said no. That is a disaster really. That seems to me cause for a lot of investigation,” he says.
His belief is that the circuit judge system which takes people away from home for months at a time may be dissuading women from taking up judicial positions. As with his direct call for an independent Ministry of Justice, Browne-Wilkinson is equally clear that there is a need for an overhaul of the circuit judge system to alleviate the problem.
Browne-Wilkinson is also keen to talk about the Law Lords and the Privy Council, whose time is increasingly taken up with acting as the highest court of appeal for the UK’s former Caribbean colonies. These appeals – the majority against the death sentence – take up, he estimates, about a quarter of Law Lords’ time.
There simply aren’t enough hours in the day, he complains, for the 12 Law Lords to cope with the amount of work expected of them. As with everything else, he is keen to share his solutions. For starters, he argues, take the Caribbean cases away from the Privy Council and give those countries their full legal independence.
Other suggestions include increasing the number of Law Lords or, if you like, create a two-tier highest court of the land. “One possibility would be to have a Supreme Court and also a Supreme Constitutional Court and to bring onto the constitutional court people who are not entirely lawyers but academics and social historians,” he says.
Once you get an interview with him, the supreme Law Lord is not difficult to get talking. Behind the affable exterior there is obviously a formidable legal mind, a sharp eye for the political context of the modern judiciary and a shrewd strategic brain. Browne-Wilkinson does not bemoan the problems of the modern legal system, he is willing to come up with and argue for solutions.
During one of his excursions into the possible future of a two-tier highest court, he stops for a moment and adds ruefully: “I should think I am about the only person in favour of that.” That may well be the case but you get the feeling that if Browne-Wilkinson is in favour of it, it just might get through.