Lord Browne-wilkinson
Law Lord who gave a judgment against a colleague after the attempt to extradite General Pinochet
LORD BROWNEWILKINSON, who has died aged 88, was a highly respected Law Lord from 1991 to 2000, being the Senior Law Lord for the final two of those years; while holding that position he had to deal with one of the most difficult situations ever to face the Supreme Court, which involved his having to give a judgment against one of his fellow Law Lords.
This was the case heard in 1998 dealing with the application, at the instance of the Spanish authorities, to extradite General Pinochet, the former President of Chile. If extradited, he would have faced trial in Spain for crimes against humanity, including torture and murder.
The General was at the time within British jurisdiction, receiving treatment at the London Clinic. The extradition claim turned on whether he had a right of immunity as an ex-head of state.
A previous House of Lords hearing had allowed Amnesty International to join in the proceedings, and to argue in favour of extradition. That House of Lords Committee, which included Lord Hoffman, decided the General was not immune from proceedings and that extradition should go ahead.
However, after this decision was made, it was revealed that Lord Hoffman was a director and chairman of a company within Amnesty International whose role was to handle its UK charitable activities; consequently, Pinochet’s lawyers launched a fresh application to have the previous decision set aside on the grounds of apparent bias.
Lord Browne-wilkinson presided over a new panel to hear this new application, with different judges, including his predecessor as Senior Law Lord, Lord Goff. This new panel of Law Lords did indeed set aside the previous ruling, holding that Lord Hoffman had the appearance of bias, and should not have sat. Justice must not only be done; it must be seen to be done. Lord Hoffman had appeared to be a judge in his own cause, something that is absolutely prohibited.
Lord Browne-wilkinson’s judgment is an impeccable exercise in logic and law; but having to wrestle with the personal problem of making a public judicial criticism of a colleague and fellow Law Lord caused a major strain, which eventually told on his health. He was never able to repair the personal breach with Lord Hoffman.
The son of a well-known canon of the Church of England, Nicolas Christopher Henry Brownewilkinson was born on March 30 1930. In adult life he was not a believer. Nico, as he was known to his friends, was educated at Lancing and Magdalen College, Oxford, later on becoming a fellow of that college.
He was called to the Bar by Lincoln’s Inn in 1953, and practised in the Chancery Division. Long before he took silk, in 1972, it was clear to all who knew him that the combination of his outstanding ability and striking personality would take him far. His progress never faltered, and for a Chancery barrister it was rapid.
He became junior counsel for the Registrar of Restrictive Trading Agreements in 1964, and between 1966 and 1972 he was junior counsel to the Attorney General on both charity and bankruptcy matters. This government work illustrated how highly he was thought of in official circles, just as he was by his contemporaries.
He was appointed a High Court judge in 1977, before which he had already been a judge in the Appeal Court in Jersey and Guernsey. In 1983 he was elevated to the Court of Appeal, becoming vice chancellor two years later.
During his judicial career, Browne-wilkinson gave many judgments which became important precedents. One example was the case of Tan Te Lam against the detention authorities in Hong Kong in 1996.
Tan was one of the “boat people” escaping Vietnam to Hong Kong, where he was put in a detention centre. Lord Brownewilkinson held that the power to detain an illegal immigrant persisted only during the period necessary to effect removal; and that as the Vietnamese government refused to accept repatriation, also extinguishing nationality, the power to detain could not persist. Removal could not be carried out within a reasonable time. This is still taken as the law today.
He was a powerful advocate of the need to preserve the independence of the judiciary, regarding it as a cornerstone of Britain’s constitution. He gave an important lecture on the subject in 1987, the Mann Lecture, in which he pointed out that while there was no hint of anyone trying to influence the independence of judges directly, the changes of the time gave the government control of the finances and administration of the judicial system, without any input from the judges about what the needs of the system were.
Moreover, what was new when he gave the lecture was the introduction of the Treasury’s “value for money” test to be applied to all government spending. He explained that this test could not be applied to the judicial system – under which any citizen has the right to get justice even against the government – since it is not susceptible to assessment of value.
The Lord Chancellor, who used to be both head of the judiciary and a member of the government, was previously the “referee”, safeguarding a proper allocation of finance; he warned that without this, the system could become defective. Since that lecture, many lawyers fear that this situation has worsened.
Browne-wilkinson assumed the presidency of the Senate of the Inns of Court from 1984 to 1986. A more public role was as chairman of the Financial Markets Law Committee in 2002. This body, the successor to the Financial Law Panel, was established at the instance of the governor of the Bank of England, Eddie George, with the support of the Treasury and the Law Society, to bring together senior lawyers and people from the City to create a bridge between the judiciary and financial markets and thereby help the Courts keep up to date.
He married first, Ursula de Lacy Bacon, who died in 1987. They spent much of their spare time on their farm in Wales. They had three sons and two daughters, all of whom survive him; one son is a successful QC. He married secondly, in 1990, Hilary Tuckwell, a partner in the solicitors’ firm of Charles Russell and a vivacious personality with whom Browne-wilkinson led an active urban life, enjoying particularly music but also the visual arts.
Browne-wilkinson never flaunted his achievements. Few even of his closest friends (other than those from his Oxford days) knew that he had earned a squash Blue as an undergraduate.
As a judge, one of his notable characteristics was that he was invariably courteous to barristers, whatever he inwardly thought of their abilities. He always listened assiduously to both sides of the case, having invariably eschewed a “starting position”.
It sometimes took him a long time to make up his mind. It was always said that in one important case his delay in giving judgment was so long that the Lord Chancellor had to nudge him to get on with it. But when he did decide, he was almost always right; not many times did anyone find fault in his judgments.
Lord Browne-wilkinson, born March 30 1930, died July 25 2018