Peter Millett: A senior judge’s revelations

My knowledge of the legal system is as much from TV as from my occasional appearances before judges in court (twice) and in Parliament (once).¹In my earliest days as a freelance journalist, I was taken to court over a very small tax bill. Many years later, I appeared in the High Court as a witness against some animal rights protestors; around then I appeared before a joint Lords and Commons Human Rights committee, arguing that the media and the courts were too permissive about disruptive and vicious protest – my argument was greeted by Lord Lester with lofty disdain. ) I have been a tourist observer of some judges, both civil and criminal, and felt a lot of respect and a batsqueak of anxiety. I have sometimes felt that the less we know about judges as people, the better for justice. And yet I fell on the memoir As in Memory Long (2017) by Lord Justice Peter Millett (1932-2021), with a will. It is deliberately but almost slyly revelatory. It was encountered by chance, but exerted a peculiar spell. Oddly, but above all, Millett was not a celebrity judge. He was not a Woolf, Hoffman, Sumption, Bingham or Lester and I prefer neglected byways to well-trodden highways. Perhaps that’s because I am struck that fame conduces to the performative. A couple of warnings. Peter Millett reveals himself to have had a certain pettiness in his nature. I have not skated over this. And I repeat: I am not equipped to judge him as a judge. Luckily, I have come across Colin Paterson,  an excellent writer who is, and nearly does.We know a few things about Lord Justice Peter Millett within a minute or so of beginning his brisk and avowedly humorous autobiography, published in 2015, with the account effectively ending in 2005. Millett (born 1932, died 2021) was Jewish, liked circumcision jokes, and as a young man was quite the prankster. I think one can deduce that he carried small resentments and got payback for them in his memoir, with no harm done. Indeed, one can rather treasure the reveal.

His memoir is not intended to present a running total of his achievements. Indeed, we have to tot that up for ourselves. He is self-deprecating to a T, and yet he is – perhaps charmingly – rather tin-eared. Throughout his life, he appreciated his victories over assertive authority and intellectuals. By the end of his career, he was required to fence with men he thought much more clever than himself (including Lords Hoffman and Sumption). He was often surprised and pleased by how much more right he had been in legal matters than the luminaries. That is judged on a high bar: he noted almost gleefully when his arguments survived whilst theirs crashed.

Good judges defend the law, but great ones advance it. Millett has been assessed as a major if largely unknown figure because he usefully shifted both some commercial law, and what might be called rights law. Indeed, it is possible that he was aware of being a Jewish lawyer, with a desire to be righteous – in a good sense – as well as right. Millett particularly judges himself a success when he imports into his judgments what I think of as his reading of an almost biblical dimension (we most see it where babies and Jews are concerned). He also loves the quirks of legal life, whether they are found in Chancery law, Lincoln’s Inn mores or the Hong Kong courts, all of which he knew very well.²Millett had long experience as a visiting judge in the Hong Kong legal system: the Chinese view of the world amused and moved him. He thinks they carry their own compelling logic, comical in their variety. He became a committed and effective player in every institutional sphere of his professional and private life.

So, here is a feeling man, who is a very quick and sharp study, but almost the antithesis of an intellectual, whose quick and serious wits and feelings make him quite the study.  A small mystery, amongst several: he never tells us how rich success in commercial law made him.

“From Small Beginnings”

Peter Millett, PC, GBS, did not spring from small beginnings, whatever the heading of Chapter One of his memoir says. He was born on the energetic end of a classic modern springboard. His paternal grandparents, one learns from Wiki, were Polish Jewish immigrants who were part of the wide cousinage who started the Milletts (aka Millets) outdoors High Street chain. Is it snobbery that keeps Peter silent on the business life of his father, Denis, who we can discover, but not from this book, was involved in the Millets concern? His mother was a tennis champion (and his wife Ann was another). His parents eventually set up in Hampstead, whence Peter Millett tells us they determined on Harrow over Eton for their boy, since both were active Liberals, disliked Labour and had what Peter called “a visceral hatred of the Tories”.

Adult Peter seems not to have inherited this family politics, at least not wholesale. He later said none of his legal friends would have seen Guardian leaks of his 1998 appointment to the highest appeal court in the land. The paper was headlining the imminent appointment of Millett to the Law Lords as a “swing to the right” in the court. Millett does not demur. His being of the right is perhaps – but slyly if at all – evidenced by his remark that Lord Hoffman’s commitment to Amnesty International (which got the latter into trouble) was hardly unusual, since all Millett’s colleagues probably subscribed to that campaign. He doesn’t tell us whether he did himself. One can deduce that Millett thought the judiciary was at least a little split between Guardianistas and the Times-type right, amongst whom he might well have counted himself.

I detect no sign that he was a political progressive as opposed to a closet Tory, let alone a “liberal judge”. Was he, come to that, a “judicial activist” (and thus one of the Daily Mail’s “enemies of the people”)? Insofar as judges form gangs or cliques, to which if any did he belong? Where was he in the culture wars? On these matters, he is not remotely explicit. But then, it is striking that he makes no claim to a systematic intellectual or ideological coherence. As his Preface warns us, his book is an anecdotal scatter, allowing the chips to fall where they may. He seems to revel not in ideological positions but in something more like alertness or canniness and his wits. (He also quite likes his pratfalls.) And yet: in the High Court, he made fancy tax scamming much harder; in the Lords one of his dissenting judgments would have made it easier to extradite state torturers; and another came down squarely on the right of any baby to be thought a blessing. He was a habitual dissenter, though nothing like a contrarian. (This is crucial to much of what follows, if you stick with this.) 

I would be amazed if Peter Millett was not at least flirting with seriously frank self-revelation in his memoir, within quirky limits. But his Preface insists he hasn’t promised to tell the truth “about myself, and certainly not the whole truth and nothing but the truth…”). However, evidence that his account of his legal work is sound and unsparing comes from The Final Judgment (2013), a book by an experienced academic, Professor Alan Paterson. It compares and contrasts Paterson’s interviews with the country’s most senior judges, including Millett, in a process which leaves few hiding places for anyone trying to pull the wool over our eyes. Besides, the Daily Telegraph’s obituary says he was one of the most open of judges, frequently publishing detailed accounts of the reasoning behind his judgments.

Millett growing up

In Millett’s As In Memory Long, we meet a man who is almost alarmingly – one might say, naively – frank about some things. He seems boyish. He maintained a lifelong affection for his old school, Harrow, and conveys the common impression that it was a place of sturdiness and something more. The headmaster steered high-flying sixth former Peter away from Oxford and toward Cambridge and as clearly steered a friend of Peter’s  away from Cambridge and towards Oxford. The pair’s successful entrance exam results convinced them the head was right in this precision targeting. Isn’t it fair to think that Oxford likes aesthetic, show-off intellectualism and Cambridge will tolerate moral, dogged seriousness? Wasn’t it right that Millett’s steadiness was given the chance to develop in the icy, damp fenland winds? Might not Oxford have made him too twinkle-toed for his own good?

A kind of theatricality took young MIllett towards advocacy, and a kind of modesty took him towards Chancery. His father had sent the 17 year-old Peter on a tour of the professions of various friends, including an accountant, a stockbroker, an insurance broker and a solicitor. All these activities seemed tedious to the youngster. Things became clearer when Milletts father and son tumbled from the upper deck of their bus into the Dickensian Royal Courts of Justice and the courtroom where Lord Goddard, the Lord Chief Justice, was listening – and following, page-turn for page-turn his own copy – a read-aloud disquisition from a barrister. No witnesses and no jury added to the few lawyers present. The barrister reached the end of his pages, and Goddard asked a few polite questions. “I thought that this was marvelous”, writes Peter Millett. “Nothing like this ever happened at home, where it was impossible for anyone to finish a sentence”. Ah: here’s a Jewish joke or at any rate a trope we hear on all sides from Jews, whose families are close and fissiparous: a great nursery for professional disputation.

The issue was: what sort of barrister should he be? At first, Peter was tempted by the glamorously macabre branch of his trade. As he prepared to study law at Cambridge, he read some of the Notable British Trials series on murder trials from back in the day when killers, barristers and judges really knew how to put on a sort of burlesque. Footnote: ³Several of the volumes were written by Filson Young, of this parish.

Figures such as Marshall Hall and Patrick Hastings loomed large. But at Cambridge Millett had friends – notably of the left – who were well-connected and confident and headed toward such careers. One such looked likely to start out with a third, “whereas”, writes Peter, “I was heading for a first… I panicked and decided to follow a path as far from the Criminal Bar as possible.” This is the beginning of a dichotomy Millett comes back to: a barrister will either triumph by being armoured in the law, or by being fleet of foot in legal argument, but seldom equally in both. Even in dull Chancery, the difference in approach applies, and Millett seems to envy the born advocate’s do-or-die tactics, whilst himself pursuing the duller preference for being steadily right.

Equipped with his undergraduate double first, and assured a place in good commercial law chambers, Peter endured National Service in the RAF for a couple of years, and did so with humour and without rancour. One has the feeling that he believed in making the best of the circumstances life chucked at him.

Arrival on the legal stage…..

As a barrister and judge, from 1958 until 1998, when he was appointed a Law Lord, Millett worked in Chancery law, which is mostly about money, companies, property and tax. It’s as though he gracefully slid into the inscrutable Bleak House world, wherein he could display research, diligence, nit-picking, and rapier brain work. He rose, smoothly it seems, but showing brilliance throughout, from uninfluential but affluent family background to the heights of his profession. I am imagining that politeness masked determination. He also acquired or always had an affective and effective clubbability amongst his inherited faith and custom of the West London and Bevis Marks synagogues; within his beloved brotherhood of Freemasonry; and rising to the heights of the professional coterie of Lincoln’s Inn. He is not entirely like CS Sansom’s Shardlake, and yet their worlds, separated by several hundred years, coincided almost eerily in Chancery and Lincoln’s Inn, but also in their desire to be good men. He is a Shardlake in valuing friends-in-law. One of Millett’s friends in Chancery, Lincoln’s Inn, Hong Kong law, and Freemasonry was Gerald Godfrey, who incidentally addressed more directly than Millett the Jewish dimension in English law. Footnote: ⁴Gerald Godfrey, “The Judges and the Jews” in Ecclesiastical Law Journal, January 2003, published online by Cambridge University Press. An online search reveals an accessible free PDF download. It’s a witty and wry piece, first delivered at Lincoln’s Inn. Millett says that Godfrey “always saw himself as an advocate first and foremost though he was also a very good lawyer.”  Apparently, he also placed great weight on reading a judge’s strengths and weaknesses, and that a case’s winning argument was often the one which the judge thought had come from himself.

I don’t suppose it was cynicism which made Millett commit to being useful within the upper echelons of these virtual empires. He was not a Garrick lawyer, and one supposes his world was mostly one of institutional hierarchies, and a small personal circle. He did not seek or get celebrity. When he retired as a Lord of Appeal in 2004, The Times thought he was Lord Justice “Miller” to whom no distinguished judgments were ascribed (though they gave him a decent obituary in 2021).

It is touching that he seems not to have been a judgmental man. Indeed, he may have been too sensitive to want to deal with the sheer horror of much of what is exposed in court rooms. Chancery law was full-out emotional only where it ventured into family law, when it encompassed the financial fall-out of couples and the children they spawn. At one point, in 1986, as a senior barrister, Millet has a horror that he might be appointed a judge, though only at the expense of moving to family law. “But I had always hated having to tell a mother that unless she give up her lover or way of life, she would never see her children again, or a father that he could only see his children for one afternoon every other week whilst they lived with his wife’s new paramour”. Luckily, Lord Hailsham appointed him to a judgeship in the familiar Chancery Division.

Millett out and about

There he is, photographed on the cover, though surely not in a photograph of the 1980s, as the caption says. It seems more probably a Peter Millett in his late 30s or maybe early 40s. He looks every inch a matinee idol of perhaps the 1920s and 1930s. He looks slick, smug, self-assured, debonair.

And yet, to the contrary, we also have his mid-1970s account of buying tights for his Queen’s Counsel robes in the local Debenhams (I picture it off Oxford Street) and “blushing scarlet” when he has to tell the giggling assistant that they are for him not the wife beside him. This is not the first mention of Ann in terms which seem to be furtively disobliging. Indeed, in two or three anecdotes, we find his autobiography taking other sneaky pot-shots – they do seem like micro-retaliations – against his wife. He notes that when he was the Treasurer of Lincoln’s Inn (in the full professional pomp of the last years of his career), “Ann took her position as wife of the Treasurer very seriously and thoroughly enjoyed her year. So did the Inn – she became affectionately known as ‘the Treasurine’”. Does Peter believe this characterisation of the Inn’s feelings towards Ann? He tells us that the Under Treasurer heard that during an argument with the chefs, “she had become a little over-bossy” and remarked to her that the chain of command ran through her husband, not her. Peter had to tell him that though that was true, “who I get my orders from is none of your business”. Peter reports that the remark brought much laughter, and that everyone thought the right relationship had been established. This is harmless stuff, of course: but Peter quite often congratulates himself as having created a good impression in others on only slight evidence from them. And quite often, Ann comes out of it not so well.

So far, so good. Like all other lives, there is more enigma in the story than Peter Millett perhaps knows, and certainly more than he advertises. Schopenhauer said that a person’s style reveals the physiognomy of their soul. It’s a post modern thought avant la lettre. Millett’s style of self-presentation may be an unconscious reveal of something or other he may barely have grasped himself. The result is insufficient to explain this book’s great attraction. I first read this 2015 book, perhaps on reading of its existence in an obituary notice on its author’s death in 2021. I read it with enthusiasm, and left it feeling that I owed it more. In 2024, I revisited the book, pencil in hand, and determined to see if I could see some themes and threads in the legal and personal vignettes it presents.

The second reading

This time, I numbered and annotated each legal case that Millett examines, mostly from his personal involvement. I got to 80-odd by the end. He gives us “Wit and Wisdom” examples of judges being a bit of a joke, or making jokes. There are engaging accounts of the different styles of advocacy to be found: barristers are show-offs, tacticians, and Gradgrinds, according to the dictates of temperament, or the matter in hand. But it is the gravamen of disputes which Peter Millett is keen to give us: the matter, the argument on which each one swings. The resolution of the cases which come under his scrutiny often depend on unpicking the meaning of key words to be found in statute or case law. And in a minority of cases, but quite often, and often in important cases, they depend on judges smuggling into their judgments their own affection for some reading of what their humanity dictates. In short, he insists that judges have to work out what the law on a matter is, but also where justice lies. Their acuity and their conscience are both in play. They often simply insist that their own intuitions matter more than can be said in public, lest the august court be seen as a saloon bar writ formal. Everything, however emotional, must be refracted into legal respectability.

As a rising barrister and later as a judge of increasing seniority, Millett delights in subtle arguments deftly put. But he is especially interesting on the peculiar chemistry of legal relationships. Barristers and judges are always judging each other’s arguments, acquiring or losing reputations as they go. Within this entire elite, there is brutal argumentative democracy at work. There is also the politics of the greasy pole. Much of the workings must be hidden from the public, since the legal system longs to be seen to be delivering infallibility, which can never be a real thing. The trade depends on mystery to give substance to its illusion. Footnote: ⁵ AIML, page 65:  PM once heard Lord Justice Salmon saying: “The law exists to serve the changing needs of man from age to age”. Forty years later PM heard a Harvard law professor saying: “If the law is not certain, I do not know what the law is”. PM comments: “The two descriptions of the law are irreconcilable, but both are true.”

Oh dear. There now follow a few rather windy background paragraphs. I hope you will find them highly relevant to Peter Millett’s particular legal story, in which personality meets logic.

Up to a point, the law wears its fallibility on its sleeve. Avenues of appeal upwards must be seen to be available and judgments open to public scrutiny. By the time a case ascends to the highest court in the land, it has shown the weakness of various lower rungs in the ladder below it. The highest rung must somehow assert an obvious untruth: that a system which has failed so far, has at last attained perfection, or at least the best that can be achieved this side of the veil. Our man Millett was one of the last Law Lords, acting within the dignity and authority of the Crown in Parliament in the Palace of Westminster. Alan Paterson’s Final Judgment gives us an account of the sheer variety of disagreements senior judges are prone to, amongst themselves.

Yet there are justifiable pressures to achieve unanimity in the higher appeal court cases. Split decisions can’t readily be presented as authoritative. But how to prove they are not in some sense conspiratorial in the sense of being argued from a common liberalism, or, contrariwise, conservatism? The law is a fraternity (or whatever word covers a club with lots of women), and its being in large degree self-governing opens it to the suspicion that it might be an attitudinal corporation. Paterson shows us Law Lords and, from 2009, Supreme Court judges being battered or educated by the competing arguments put before them by colleagues and barristers. He was writing (around 2013) before the Supreme Court’s unanimous 2019 controversial decision on Boris Johnson’s prorogation of Parliament. Perhaps it was inevitable that a modern institution such as the Supreme Court should be open to loud modern suspicions. Footnote: ⁶Sue Carr, the country’s most senior lawyer, addressed the business of judicial courage in the face of populist pressure, especially after Gina Miller’s 2016 and 2019 cases against the Tory government’s approach to “getting Brexit done”. She said: “It is true to say that judges have to have broad shoulders – they must take a robust approach to such matters and not allow themselves to be swayed by campaigns, the media or their own personal views. But judges do not simply obtain the moral courage necessary upon appointment. There is no secret sauce in the judicial oath in that respect. Rather moral courage is something that judges and magistrates develop in their careers before appointment. Where one looks at the moral courage of the judiciary, they look at the moral courage of the advocates they were before. Wordsworth once said that the child is father to the man. It can properly be said that the advocate, the lawyer, is father, is mother, to the judge.” Baroness Carr, the Lady Chief Justice at the Law Society of Jersey, September 23, 2024. Accessed https://www.judiciary.uk/speech-by-the-lady-chief-justice-at-the-law-society-of-jersey/, 24/9/24
Our current understanding is that groupthink has extraordinary depth and power. Comfort zones are hegemonic. We see in the national division over Brexit how deep and stubborn are the prejudices each side felt about the other. It has been evident alike in the old debate over Political Correctness and the new one about Wokery.

Peter Millett, amongst his Peers

Lord Peter Millett gives us absolutely no clue as to his views on the culture wars and political divisions of his day. He had no liberal fan club as his contemporary Lord Bingham had, nor a wide hinterland of opinion such as another contemporary, Lord Sumption has. In short, we know as little about his social opinions as about his larger legal philosophy (if he had one).

However, we do have the luxury that he came under the intense scrutiny of Colin Paterson who had interviewed the Law Lords of the 1980s, and 40 years later repeated the process for their heirs and successors as some of them straddled the period when the House of Lords gave way to the Supreme Court. Paterson was one of several academics who had been analysing senior judges as subjects of philosophical, legal, anthropological or sociological curiosity. He was exceptional in the closeness of the access to judges he was given, and in his focus on the social dimension of their legal work. The judges knew that he wanted to throw light on their legal handball games – the toing-and-froing between them. So it is delicious that just as Paterson comments on Millett’s relations with his fellows, Millett comments on Paterson’s account of him.    

In Paterson’s Final Judgment the judges gossip about each other, and themselves. Paterson calibrates their accounts of themselves and each other, giving a remarkable cross-check of their opinions from individual interviews, always conducted one-to-one, in private. He is interested in how senior judges work together, and with other lawyers, in developing judgments, and especially in how they reach consensus, where they do, and how dissent amongst them is handled. But is there a special cohesiveness amongst judges, and especially within the Supreme Court, not least because theirs must necessarily be the Last Word?

Paterson does not speculate about any of that. But he gives us several definitions of the idea of “judicial activism”. Some relate to judges’ preparedness to go a little beyond Parliament’s stated intention in a statute: meaning that if Parliament’s Acts produce injustices, then judges should fix them, granted that their duty to fair play is even higher than their duty to the People’s Voice. Others relate to “declaratory” law: meaning that what a judge says is the law in a particular case now, had – actually – always been so. This is a claim to a sort of retroactive infallibility.

In one of Millett’s most striking Lords judgments, he goes with his heart not his head. The arguments involved are key Millett and key Paterson.

Millett in Paterson

This famous “unwanted pregnancy” matter concerned a couple who sued the NHS which had (without alleged fault) failed in its performing of a vasectomy on the husband and compounded the matter (perhaps culpably) by declaring him to be henceforth sperm-free. Footnote: ⁷https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd991125/macfar-1.htm,Macfarlane and Another v. Tayside Health Board (Scotland), 25 November 1999

A baby ensured and was duly loved, much as though she had been wanted. Damages were claimed by the couple and denied by a lower court. Millett says this was one of the rare instances of what Paterson calls “close calls” the law throws up. In general, Millett says: “Most of our decisions were unanimous, though that does not mean our reasons were the same…. Sometimes we all arrived at the result but by very different routes”. Amongst the final appeal judges, only Millett thought the couple should be denied their full payout. He writes: “We all instinctively felt that it would be wrong to allow the costs of maintaining Catherine [the baby] throughout her childhood and were unanimous in allowing the [NHS] appeal in relation to this claim. The difficulty was to find a legal reason to support our instinctive reaction, and each of us adopted a different approach”. 

Millett found jurisdictions all over the Anglosphere had faced a similar difficulty. Over a few fine pages he explains that he looked at plenty of similar cases, but could find nothing to bolster his conviction that the couple were over-reaching. It seems he charged on regardless. “I decided that, whatever the individuals concerned might think, the law must take the birth of a normal healthy baby to be a blessing, not a detriment… it was morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth… Although I was not prepared to accept the claimants’ case, I was not willing to send them away empty handed.” Isn’t all that a rather Jewish take on righteousness? Footnote: ⁸Shades of Julian Simon, the pro-growth cornucopian who insisted that every human birth must be seen as a benefit to humanity.

This is all pure Millett, as an example of his appetite to make both human and legal sense – as well as a success – of his advocacy. It is activism, almost human rights activism, from someone not notably liberal or an activist. It is justice, not blind but almost visionary, and to hell with legal petty-fogging. It is Millett making a case implicit in Paterson: that unanimity of judgment is not the same as unanimity of approach. Besides, he is not adamantine even in his obduracy: “I was not unhappy”, he wrote, when his colleagues allowed aspects of the wife’s claim, in spite of his views.

When a barrister such as Millett becomes a judge, he becomes judged all over again, but to a higher standard; when he becomes an appeal judge, let alone a judge of final appeal, he or she merely becomes an advocate whose arguments and judgments are judged by the severest judges of all. It seems that quite a lot of the time, a judge is trying to persuade his or her brothers or sisters to cohere, naturally enough, around a particular argument and judgment. Paterson says that some judges – he names Peter Millett and Leonard Hoffman amongst them – are “tacticians”, for instance in knowing when and in what terms to co-operate to win an argument for their side. But it’s like herding cats: neither Millett nor Paterson give any sense that there are pre-ordained or well-structured teams.

A striking theme in his account of his pinnacle years is Peter Millett’s mentions of Lord Leonard, or Lennie Hoffman. Millett notes (without cavil), “although Professor Paterson describes me as Lord Hoffman’s usual sparring partner, it turns out that we agreed together more often than we disagreed.” It pleases Millett to have to confirmed that he was collegiate.

Even better Paterson confirms publicly and on the record what Millett already knew. , Millett writes: “Although Lord Hoffman almost always won the argument when we disagreed, my view tended to prevail in the long run. In at least two cases, his opinion, which carried the majority at the time, left the law in such disarray that it had to be repudiated within a remarkably few years”.

Millett felt Hoffman had a powerful immediate influence on appeal panels. Hoffman wrote elegant draft judgments, to pre-emptive effect. Millett notes that Hoffman’s success, was “partly because he wrote so eloquently but mainly because he wrote so quickly.” Ouch. So, Hoffman (an Oxford man, incidentally) got his argument into the minds of his brother judges early, but quiet, persistent (Cambridge) Millett, sometimes having been a lone dissenter against the dazzling Hoffman, often has the final victory.

We get a picture of Millett as brilliant and dogged; as a consensus man who doesn’t mind being a dissenter; as a book-learned lawyer who values his moral convictions. 

Millett’s book gives us the impression that he feels himself the junior when he is at odds with the star. In one case, Millett tries again and again, face to face, to shift Hoffman’s opinion. He makes repeated, perhaps persistent, or dogged visits to Hoffman’s room to try to win the cleverer man over, and fails. Hoffman wins the day in producing a majority opinion, but Millett is vindicated three years later when Lord Hoffman tacitly reverses himself in a Privy Council judgment. In subsequent similar cases the Hoffman view is in effect repudiated, sometimes by Lord Hoffman himself, whilst Millett’s victory is tacit, implicit, unacknowledged and more permanent. And here is Millett, in the memoir, putting the record straight, and hugging to himself Paterson’s clear implication that Hoffman did not trouble to admit his error.

Almost by accident Millett was one of the Law Lords judging the second House of Lords round over the extradition of General Pinochet in 1999. It was – says Millett – “the single most important case of my career”. It was, literally, a tortuous business: peculiar, and full of twists and turns. Peter Millett found profound moral force in the 1961 Eichmann trial in Israel which found that no single state could over-rule international law in such cases. ⁹ I think the issues are charted fairly clearly in this open access file: http://ejil.org/pdfs/10/2/581.pdf, written by a distinguished academic lawyer, Andrea Bianchi (“Immunity versus Human Rights: The Pinochet Case”, European Journal of International Law, 1999. Bianchi’s is plainly a lively mind, tho’ I am not equipped to judge its workings. See his writing, not least on the Pinochet issue.: https://www.ejiltalk.org/on-certainty/ I can’t resist the thought that this was a case of Millett being ruled by his feeling that he was bound by the tenets of Jewish wisdom and jurisprudence in an issue so central to Jewish consciousness. It was, so to speak, above his pay grade to ignore the parallels between the Pinochet and the Eichman cases.

Conclusion

There is a sort of pettiness in this memoir, and a sort of grandeur. I doubt Millett would have given me the time of day, face to face. But on the page, he is speaking to anyone who opens the book and must take his chances as to their view of it. He is doing so as freely as he knows how or dares. The book wants to be, and is, about the law. But surely it is a deliberately personal account of a process which aims to be impersonal and of course can’t be. This book wouldn’t be half as good if it didn’t quite often show its hand, rather as do the reveals by which a copper or gambler can spot a liar. The book’s account of trivialities must be taken as deliberate and intended to be as revealing, somehow, as the far more obvious gravitas which lurks in its vignettes.

The often-quoted Harrow songs are important to knowing Peter Millett. So is his delight in the oriental mind and behaviour, both entirely reasonable in their own terms, which he experiences as a barrister and judge. I can’t help feeling that his pleasure in his Hong Kong work arose partly because he could find in it real ethnic – anthropological diversity. He likes the way a coterie of Chinese businessmen with gambling interests could one day be conspiring to hoodwink the law and the next day be suing each other viciously. He likes the way a thread of ancient regional traditions runs through Chinese jurisprudence. They do not entirely surprise this Hampstead Jew: I think that’s because he is used to the stubbornness of oddity.

Besides, within Jewishness he finds himself emboldened in his dissenting liberalism. He is, anyway, a loyal but dissenting Jew. He is angry when Greville Janner displays anger when a fellow Jew “marries out”. Peter Millett mentions their sadness when he and Ann lose a baby son, and they defy Jewish authority in marking the grave of the infant, a break in tradition which he is pleased to see is followed by others. Much more cheerfully, he relishes Lincoln’s Inn’s “Chancery logic” in serving neither salmon nor oysters when there is no “R” in the month. There are shades here of his noting his grandfather’s joke in pretending to goys that a morsel of salmon was a baby’s detached foreskin, or of his own witty games around bacon at Harrow.

There is no aspect of this book, not a page, in which we don’t learn something about this lawyer and the law, both. It is the boyish, even impish, person of Millett that allows us to see the august, human law more clearly. And to think this memoir was written in secret. Its dedication reads: “To my darling wife Ann, who never knew that I was writing this book and would have stopped me had she known”.

ends      

Footnotes

• 1
  In my earliest days as a freelance journalist, I was taken to court over a very small tax bill. Many years later, I appeared in the High Court as a witness against some animal rights protestors; around then I appeared before a joint Lords and Commons Human Rights committee, arguing that the media and the courts were too permissive about disruptive and vicious protest – my argument was greeted by Lord Lester with lofty disdain. )
• 2
  Millett had long experience as a visiting judge in the Hong Kong legal system: the Chinese view of the world amused and moved him.
• 3
  Several of the volumes were written by Filson Young, of this parish.
• 4
  Gerald Godfrey, “The Judges and the Jews” in Ecclesiastical Law Journal, January 2003, published online by Cambridge University Press. An online search reveals an accessible free PDF download. It’s a witty and wry piece, first delivered at Lincoln’s Inn.
• 5
  AIML, page 65:  PM once heard Lord Justice Salmon saying: “The law exists to serve the changing needs of man from age to age”. Forty years later PM heard a Harvard law professor saying: “If the law is not certain, I do not know what the law is”. PM comments: “The two descriptions of the law are irreconcilable, but both are true.”
• 6
  Sue Carr, the country’s most senior lawyer, addressed the business of judicial courage in the face of populist pressure, especially after Gina Miller’s 2016 and 2019 cases against the Tory government’s approach to “getting Brexit done”. She said: “It is true to say that judges have to have broad shoulders – they must take a robust approach to such matters and not allow themselves to be swayed by campaigns, the media or their own personal views. But judges do not simply obtain the moral courage necessary upon appointment. There is no secret sauce in the judicial oath in that respect. Rather moral courage is something that judges and magistrates develop in their careers before appointment. Where one looks at the moral courage of the judiciary, they look at the moral courage of the advocates they were before. Wordsworth once said that the child is father to the man. It can properly be said that the advocate, the lawyer, is father, is mother, to the judge.” Baroness Carr, the Lady Chief Justice at the Law Society of Jersey, September 23, 2024. Accessed https://www.judiciary.uk/speech-by-the-lady-chief-justice-at-the-law-society-of-jersey/, 24/9/24
  
• 7
  https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd991125/macfar-1.htm,Macfarlane and Another v. Tayside Health Board (Scotland), 25 November 1999
• 8
  Shades of Julian Simon, the pro-growth cornucopian who insisted that every human birth must be seen as a benefit to humanity.
• 9
  I think the issues are charted fairly clearly in this open access file: http://ejil.org/pdfs/10/2/581.pdf, written by a distinguished academic lawyer, Andrea Bianchi (“Immunity versus Human Rights: The Pinochet Case”, European Journal of International Law, 1999. Bianchi’s is plainly a lively mind, tho’ I am not equipped to judge its workings. See his writing, not least on the Pinochet issue.: https://www.ejiltalk.org/on-certainty/