Caribbean courts should hear their own appeals says senior English law lord - T&T C.J. supports new regional court - judges are available
Senior Law Lord and Head of the Privy Council Lord Nicolas Browne-Wilkinson, has caused ripples in the Caribbean and elsewhere with remarks made in an interview published in The Lawyer in England in May. "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...," the article starts. 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. While he dodges questions about the (Law Lord) 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 ultimate court of appeal of a state should be in that state and staffed by citizens of it and not outsiders. "The only reason we are completely laden with Caribbean cases is because City firms have taken them up and are ensuring the cases are well presented and finding a great deal there that would otherwise not be observed. "I should think 25 per cent of the Law Lords' time is taken up with Caribbean murder and crime decisions-which is quite a fantastic number." He also pointed out that businesses are keen to retain the Privy Council because it protects investments and is a "top class commercial court". However, he added, "in relation to crime we have become rather unacceptable because we stand between them and the death penalty being enforced." Regional Court Responding after the interview to a question by a Trinidad Express reporter Chief Justice of Trinidad and Tobago Michael de la Bastide said he was in favour of eliminating the Privy Council as the final appellate court. He also wholeheartedly advocated the establishment of the Caribbean Court of Appeal. "Trinidad and Tobago has been independent for almost 37 years and it's time to set up our own final appellate court", he said. "My view is that there is something inherently wrong and discreditable in not taking responsibility for your own decisions whether they be in the political or judicial sphere. Many of the decisions made by the Privy Council involve policy decisions, and it is preferable to have those decisions made by persons who are familiar with the society in which they live. "There is a lot of talk about accountability these days. I think that one of the ways in which judges are accountable is that they should live in the society for whom they make decisions. In this way, not only are they subject to criticisms which can affect them in a personal way, but they have to live with the consequence of those decisions. They can also assess for themselves how their decisions impact on the society." To overcome the difficulty of recruiting the best lawyers as judges, because they did not like to leave a lucrative practice, the Chief Justice has offered a simple solution: "Pay them more than what is given now." If Court of Appeal judges wished to move to the Caribbean Court, there was an abundance of talent available in private practice to replace them, he told Savitri Sookraj. He pointed to the recent appointment to the Court of Appeal in Trinidad of Senior Counsel Rolston Nelson from private practice. The Pinochet case Turning to the Pinochet case, the Law Lord continued: "The Pinochet case has 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. "These are extraordinary times for the Law Lords. The Human Rights Act which will incorporate the European Convention on Human Rights into the law, has made the 23 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 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 chambers 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 describe Browne-Wilkinson as "humane". Another says "nobody has a bad word to say about him." Turning to the personal side of the Law Lord, known as "Nico" to family and friends and who has been maried twice the interview continues. 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 position. 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 every thing else, he is keen to share his solutions. For starters, he argues, take the Caribbean case away from the Privy Council and give these countries their full legal independence.
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