Lord Woolf - Former Lord Chief Justice of England and Wales HARDtalk

ring in Lille. Now it is time for There aren't many parts of the

British establishment that had escaped a battering in recent years.

Parliament, the press, the police have all been embroiled and

scandals and the ball plummeted in the public's esteem. One of the few

institutions to have escaped so far is the judiciary, so long and so

often held up as a model around the world. But, with the judge-LED

report into the British press about to be published, is there a danger

that the judiciary could be consumed by controversy. If the

British Government on a constitutional collision course

with what it sees as an over- powerful and unaccountable bunch of

judges. My guest today is Lord Woolf, England and Wales's most

-- at the mansion was until his retirement in 2005, England and

Wales's most senior judge. Lord Woolf, welcome to HARDtalk. Thank

you. They are speaking on the eve of the publication of a report by a

very senior judge into not just what went wrong with the press over

the phone hacking scandal but also her for the Government should

legislate, if at all, to control the press. When you see a fellow

judge being involved in such a contentious issue, are you pleased

and proud that a member of the judiciary is taking this on or are

you concerned that they're going into potentially, in terms of

policy making, some very dangerous waters? I have concerns but I see

it, today, as part of the duty of being a senior judge. I think it

indicates the status the judiciary have been the public's mind that

they will come a judge being given the job of chairing an inquiry of

the sort that Lord Justice Leveson is investigating. Judges are good

at discerning fats, that is their job. They are less expert at making

policy decisions. Yes. And, in the end, policy is not a matter for the

George. You can make recommendations but the very fact

that they are recommendations means that somebody else can decide

whether they should be accepted or rejected or modified or whatever

view the take-off them. Once the judge has made his report, his

concern normally comes to an end. The trouble is for the judiciary

more broadly is that if the recommendations are ignored or

repudiated, it could be seen to undermine the position of the

judiciary. I have conducted a number of inquiries. I never

thought quite in that way. I called by recommendations would be

accepted. I thought they were the things that should be done. I did

realise that that was not part of the exercise where my decision the

B final. I try to choose recommendations which affected my

own views but also would be acceptable to those who had invited

me to make the report. The trouble for Lord Justice Leveson is that

because it is such a contentious issue, he is being drawn into the

debate in a way that I would think a lot of judges would not like. He

has been lampooned by a senior Cabinet minister, Michael Gove. He

said that he should be given an award for his commitment to truth

telling for his wonderful command, this is Lord Justice Leveson's

comments, "I don't need any lessons in freedom of speech, Mr Gove, nor

why don't." That was during the inquiry. If you are seeing judges

been attacked in those terms, it could be potentially dangerous.

think it is undesirable that judges are attacked. They cannot answer

back normally. It is interesting that during the course of the

inquiry that Lord Justice Leveson has been talked to in those terms.

At least he did initiate and was in control of the discussion. Quite

frankly, if you're a judge with the experience that Lord Justice

Leveson has, his skin has been hardened because you're doing

justice in public all the time. That is what he meant by his remark

about freedom of speech. We know that if are just as close wrong --

that our justice goes wrong when is not conducted in public. That is

why we are very reluctant to do anything other than old record.

want to talk to you about one of the very contentious issues about

how far justice should be openly do. In terms of this general principle

be seemed to be established that when there is some scandal, some

extremely thorny issue that governments have to grasp, quite

often what they would do these days is to reach for a judge LED inquiry.

Is that automatically a good thing we do you think sometimes it can be

because governments don't want to take the tough decisions?

I think sometimes governments aren't always in the best position

to judge whether it is suitable for a judge inquiry. When we had the

recent constitution and changes in 2005, others are chink, as the

constitutional Reform Act went through Parliament, that the

Government should not have the final say and the Chief Justice of

the day should be there as a sort of long-stop to say that perhaps

this is not something that is suitable for a judge. The

Government was adamant that that wasn't the best course and

Parliament left the final say in the hands of the government and, of

course, the judges used to obeying the law. What sort of things to you

think are inappropriate for a judge LED inquiry? First of all, what I

do believe, it has got to be something which has some aspects

but the public's concern is so great that it warrants using a

judge. We've got a very high quality judiciary, I think. I think

most people share that view. They are very small in number. An

inquiry is an extra job. I think, therefore, they should only be used

contribution. I think if it's a highly controversial issue then

judges have got to be prepared to take it on. Normally, if the

Government wanted to take it on, you accept that. It's also a bit of

an indictment about the other avenues of inquiry that are open.

If you think about parliamentary committees of inquiry, if you watch

a select committee of MPs going about their business, is

grandstanding, its scattergun, it's not forensic. Isolde the place.

It's in marked contrast to many judge inquiries. Don't you think

that is part of the problems as well -- problem as well? There are

not other avenues? It is very different worlds come up with a

judge comes from and where a politician comes from. Our judges

used to be investigating in public and then making a re

an ordinary course of events, and be called a report, due be called a

judgment. It sets out his view of the facts. If that's part of the

exercise, that points to using the skills of the judge has acquired

over many years for that purpose. There are others with the same

skills. Of them we have inquiries by a QC. A lawyer. There has been

concern from the Government, you say that they are keen to use

judges when it is appropriate for public inquiries, there has been

concern from the Government, boys by the Prime Minister and the last

few days, that there is a proliferation of judicial review in

a way that things run down from public inquiries. There are

thousands of judicial reviews now whereas once they are used to be

just a handful. That was only a few decades ago. How sympathetic are

you to the idea that judges are getting in the way a bit too much

of the normal process of doing business? Governmental business?

Yes. I think it's very important that there should be the ability

for the final course, if you think that there is a situation where the

judges going to have to rule on the legality what the Government is

proposing to do that you have access to a court. Judicial review

was designed, I put a bit of a part in the initial days, to try and

protect the Government so the Government could carry on its

business pitches to govern the country. At the same time, there

could be scrutiny what the judges are doing in those cases where it

is appropriate. The number has grown exponentially in recent

decades to the point where ministers, with David Cameron at

the helm, have said it is stopping government from doing business.

have concerns as to whether that is right. What life here is that,

unfortunately, because that particular situation, with regard

to all forms of immigration, that was being used regularly to deal

with the situation of an individual immigrant who wanted to come to

this country and who has said he is: Because he mood asylum and

accord Scott pulled under this -- and who has said he is coming

because he needed asylum. The chords have said to this... My view

is that there are areas where there is going to be that sort of build-

up of work and then it is very much better that the code to a

specialist tribunal. That is what is happening. -- that they go to.

Judicial review is the last resort. If there is another way of getting

the matter resolved, then the person who wants to take on the

Government should use that channel. -- resolve satisfactorily. We've

talked about the way in which British organises itself internally,

anyway. It also has tremendous international obligations. One of

the issues it is causing particular reaction at the moment is whether a

prisoner should be given the right to vote. That is something that the

European Court on Human Rights says that Britain has to do. It does not

currently, unlike most European countries. The Prime Minister has

said that the prospect of giving prisoners what makes him physically

sick. What do you think about the issue?

Another very experienced Queen's Counsel who was a member of the

House of Lords said that he found the Prime Minister's reaction to

that particular problem made him sick. I don't believe in quite

those stark terms but I understand the position of both. If you are

Prime Minister, it is very frustrating that the cords should

be able to say stop. The European cause? The European cause and our

courts. What the European courts say has a direct impact on our

courts. It are chords in what is being done is not in accord with

what the law requires, they will also ask him to stop. Forgive me

interrupting, you cannot pick and choose. If you are as at the tree

on Human Rights, you have to abide by that. -- If you are a signatory.

You can choose which bits you agree with. It goes further than that.

Parliament itself has said that the European Convention of ride, which

is part of domestic law, we have to pay regard to what has been decided

by the Libyan court. It is influenced by Parliament. Do you

agree with the judgment of the outgoing president of the European

Court of Human Rights when he said it is seen as damaging that a

country as important as the United Kingdom has not complied with a

court judgment, in this case the judgment over pretty as having the

right to vote? -- prisoners having For the counter argument which has

come from British ministers and indeed a senior former British law

lord is that what we do have to comply, Britain has to comply with

the human rights, parliamentary sovereignty tree supersedes it

those route -- supersedes those rules. I do not think he is

necessary -- necessarily right. It is complicated by the presence of

obligations in respect to the European Convention and above all

the European Human Rights Act which brought the European Convention

into a domestic law. Before that, it was only part of the

international law. What I am really concerned about is this - we are

held up by many in Parliament and elsewhere as the country that

really is committed to the rule of law. That is something of which I

am very proud as a citizen as this country and particularly as a judge.

I am afraid that if we do not seem to be observing that the rule of

law that sense an appalling message around the globe. Let me ask you

about another message that some people are saying is being sent

around by the legal reform that is being talked about in the House of

Lords been in the upper chamber of parliament and that is the secret

courts - the issue of when the government is trying to defend

itself in civil courts against damages from a plaintive for

example the UK secret services being complicit in torture, that

they disclose evidence to a judge but not to the plaintiff, the other

side, they withhold evidence from a public hearing. There are plenty of

people who say this goes against a fundamental tenant of justice and

has to be seen to be open. Where do you stand? I understand the

position of those who say that but in my view, they have not got the

balance and quite right in putting it into the stark terms that they

do. The first responsibility of the court is to do justice, the second

responsibility is to do it in a way which does not damage the concept

of justice itself. Now, a government's first responsibility

is to defend its citizens. If it comes to the conclusion that to do

something in a different way from normal will protect its ability to

look after the interests of its citizens, then it has a

responsibility, it seems to me, to try and put before Parliament a

method of doing that and on this particular issue, I cannot think

the government got it exactly right, but personally, and I emphasise

this is an matter where by different people can take different

views, but I have long experience in this area because of what I did

in practice as a barrister and what I have done as a charge, and I know

that here there is in my view room to do things in a particular way

where it is essential to do so in order to protect the government's

ability to protect its citizens and at the same time to protect the

interest of the litigants who are before it. Forgive me, it is not

about national security. These are cases about national embarrassment

about whether people are saying the security services, in this case,

are complicit in torture. It is trying to stop the government

paying out millions of pounds to litigants. It is not a matter of

security in those circumstances. I'm sorry, it is about it. What is

at issue here is protecting the ability of the government to

safeguard its citizens from danger. That is what it is about. It does

not mean the case has to be about that. The position is this, certain

information is available to the government from particular sources.

We have always recognised in law, for hundreds of years, nor has

recognised that there are situations where you have to

protect the identity, for example of a witness in civil proceedings.

Sometimes you go to great lengths to protect them because the

witnesses were not give evidence if they were not protected... Weight

one moment... You adopt a procedure which tries as far as possible to

safeguard both interest. In the cases we are talking about,

legislation going through Parliament, actually going through

Parliament today, the issue will be what do you do to an able this to

be done. What I say is, the case for the government is one which

deserves to be respected but the judge has to play a critical part

in holding the balance between the interest of the citizen to know

what is happening in court and that justice should be seen in public,

and the interest of protecting the government's ability for security.

Around the world this could be seen as British justice not being done

in public - that is the danger. this area, what I say is that it is

important to leak the judge in charge. The judge should have a

discretion. A discretion to try and square the circle by confining to

the minimum the departure from our normal standards. We have been

doing this in our courts in different ways in a long time. Just

a moment. We have got there with regards to civil proceedings which

are different criminal proceedings, to the ridiculous situation that it

has been sent if there is evidence of this sort I have indicated, it

should not be given at all. That could be a prices traditionally

adopted. If I may because time is pressing, let me ask you briefly,

we have talked about British position when it comes to law and

its export of law. You are taking a leading part trying to set up a

commercial court in Katter, how far do you think that could be a

springboard to perhaps a new standard of practising law not just

in that cou in that couacross the Middle East where the rule of law

does not mean what it means for example here. I hope the court will

be an example. I hope it will be seen and how important it is to

have a court where at least it is accepted that all the judges who

were there, are Independent, and furthermore, not only Independent,

they are skilled in deciding the sort of cases this court will here.

The fact that the Emir and the Prime Minister asked me to do these

was in my view a vote of confidence in the British justice system and

shows the respect that we have been held in. We need to get that

absolutely right. Do you think there is a chance that when we're

talking about legal standards out there in the Middle East that when

it comes to Britain and what we have talked about - secret courts,

a prisoner of voting, judicial inquiries - there is a danger that