0:00:02 > 0:00:06These are the 12 justices who make up the Supreme Court.
0:00:06 > 0:00:07All rise.
0:00:07 > 0:00:10They have the last say in the most controversial
0:00:10 > 0:00:12and difficult issues in the land.
0:00:12 > 0:00:15Very often the law is on a knife edge when it comes to us.
0:00:15 > 0:00:20Their decisions affect everyone, from MPs accused of fraud...
0:00:20 > 0:00:22Each of these appeals is dismissed.
0:00:22 > 0:00:25..To millions of bank customers.
0:00:25 > 0:00:27The big institutions of the law
0:00:27 > 0:00:29have backed the big institutions of finance.
0:00:29 > 0:00:33Their decisions protect our democracy and shape our society.
0:00:33 > 0:00:36Does he assume that or not assume that or what?
0:00:36 > 0:00:40- What does the Secretary of State do? - We're getting so confused.
0:00:40 > 0:00:42For the first time, Britain's top judges
0:00:42 > 0:00:46talk about their lives, their work and how they make their decisions.
0:00:46 > 0:00:49I sometimes start writing a judgment
0:00:49 > 0:00:52and I don't know where I'll get to at the end of it.
0:00:52 > 0:00:54What they decide binds every citizen in this country.
0:00:54 > 0:00:57But are their rulings always fair?
0:00:57 > 0:00:59Fairness is rather like beauty.
0:00:59 > 0:01:02It's in the eye of the beholder, isn't it? One side has lost.
0:01:02 > 0:01:06Does the mix of the court reflect modern life?
0:01:06 > 0:01:07There becomes a stage
0:01:07 > 0:01:10when it is embarrassing that there is not a woman.
0:01:10 > 0:01:14Do their emotions get in the way of their rulings?
0:01:14 > 0:01:17One has enormous sympathy for the individual.
0:01:17 > 0:01:20You can see how much this case means to them.
0:01:20 > 0:01:24And if they weren't there, what could happen?
0:01:24 > 0:01:28The extent of the invasion of liberty would widen,
0:01:28 > 0:01:29people would simply disappear,
0:01:29 > 0:01:32freedom of press would be trampled on.
0:01:32 > 0:01:35It's our job to see that that simply does not happen.
0:01:35 > 0:01:37Are their decisions always right?
0:01:39 > 0:01:41Anyone who expresses themselves as absolutely certain
0:01:41 > 0:01:43is either a genius or a fool.
0:01:52 > 0:01:56This court dispenses justice at the highest level.
0:01:56 > 0:01:59Everyone in the land is answerable to them.
0:01:59 > 0:02:03But who are they, and what makes them tick?
0:02:04 > 0:02:09In this film, four of them reveal how justice works,
0:02:09 > 0:02:14their battles with the Government, their struggle with emotion
0:02:14 > 0:02:17and the responsibility of having to be right.
0:02:34 > 0:02:38It's 6am and Lord Phillips has been up for hours.
0:02:38 > 0:02:41As Head of the Court, what does he think you need
0:02:41 > 0:02:44to become one of the top judges in the country?
0:02:45 > 0:02:48You need a good intellect.
0:02:48 > 0:02:52Ultimately what matters is a feel for what is the right decision
0:02:52 > 0:02:57and this is a mixture of analysis and common sense.
0:02:57 > 0:02:58Looking at the implications.
0:03:01 > 0:03:04It sounds a bit obvious, that to be a good judge
0:03:04 > 0:03:05you need good judgment.
0:03:05 > 0:03:09Lord Hope, Deputy President of the Court,
0:03:09 > 0:03:11points out the importance of temperament.
0:03:11 > 0:03:15You don't want to be the kind of person who rushes to judgment
0:03:15 > 0:03:17and sticks to come what may.
0:03:17 > 0:03:21You've got to be prepared to adjust your own views,
0:03:21 > 0:03:24however hard you were attached to them to begin with,
0:03:24 > 0:03:27by realisation that you probably weren't right after all.
0:03:31 > 0:03:33Lord Kerr believes that however well they do the job,
0:03:33 > 0:03:35they'll face tough criticism.
0:03:35 > 0:03:41Each case must be approached with complete independence of thought
0:03:41 > 0:03:46and then hopefully the outcome will bring justice.
0:03:46 > 0:03:50But one man's justice is another's injustice.
0:03:50 > 0:03:53Bye-bye, darling. Have a good day.
0:03:53 > 0:03:57Lady Hale is the only woman in the court.
0:03:57 > 0:04:04It's very difficult to say exactly what a woman brings,
0:04:04 > 0:04:10but every judge brings their own particular experiences and background
0:04:10 > 0:04:12into the job.
0:04:12 > 0:04:17We lead different lives from men, we have no choice.
0:04:17 > 0:04:20It's a good idea if those different perspectives
0:04:20 > 0:04:22find their way into the law.
0:04:28 > 0:04:34Until 2009, the highest court in the land sat in the House of Lords.
0:04:34 > 0:04:37They were the Law Lords.
0:04:37 > 0:04:39It was Tony Blair who made the decision
0:04:39 > 0:04:42to move them across the square and into their own building.
0:04:42 > 0:04:45The change, which took ten years to enact,
0:04:45 > 0:04:49was intended to make a crucially important public statement.
0:04:49 > 0:04:52That the Judiciary should be seen to be free
0:04:52 > 0:04:54from the influence of Parliament.
0:04:54 > 0:05:00It's moved here primarily as the last step in the separation of powers
0:05:00 > 0:05:04and in particular a principle that judges should be wholly independent
0:05:04 > 0:05:07of those who make the laws
0:05:07 > 0:05:11and those who are bound by them, and who execute them, the administration.
0:05:12 > 0:05:14When the justices make their decisions,
0:05:14 > 0:05:17they do so not only independently of Parliament,
0:05:17 > 0:05:22but with the unique power to reverse the rulings of all lower courts.
0:05:22 > 0:05:25We are the final Court of Appeal
0:05:25 > 0:05:32and so sometimes a case has had to be decided a particular way
0:05:32 > 0:05:37by the trial court and by the first Court of Appeal
0:05:37 > 0:05:40because there is a binding precedent
0:05:40 > 0:05:42which tells them which way to decide it.
0:05:42 > 0:05:45But we, of course, can say
0:05:45 > 0:05:49that the decisions of earlier or lower courts are wrong.
0:05:49 > 0:05:51By rejecting earlier rulings
0:05:51 > 0:05:54they establish new precedents.
0:05:54 > 0:05:57In these instances they make new case law.
0:05:57 > 0:06:00They also have the freedom to interpret another sort of law,
0:06:00 > 0:06:01parliamentary law,
0:06:01 > 0:06:06and here they may even find there is no past case to refer to.
0:06:06 > 0:06:09The law is made across the square by Parliament
0:06:09 > 0:06:14and they churn out thousands of laws, and they are not all crystal clear,
0:06:14 > 0:06:18so issues arise. What did Parliament mean when it enacted this?
0:06:18 > 0:06:21The language is confusing, that's the kind of issue.
0:06:21 > 0:06:26If it's of great importance, we will ultimately have to resolve.
0:06:26 > 0:06:28And in that kind of situation
0:06:28 > 0:06:30you won't have much guidance from previous cases.
0:06:30 > 0:06:35You have to reach a novel decision on a novel point.
0:06:41 > 0:06:46This unique role means cases of particular general importance
0:06:46 > 0:06:47or constitutional issues
0:06:47 > 0:06:50will end up in the Supreme Court.
0:06:50 > 0:06:55This is why the court should be seen to be separate from Parliament.
0:06:55 > 0:06:57One case demonstrated this powerfully,
0:06:57 > 0:07:00and the public were hooked.
0:07:00 > 0:07:03Some MPs could end up in court as a result of investigations
0:07:03 > 0:07:04into their expenses.
0:07:05 > 0:07:11Three MPs and a lord were accused of submitting false expenses.
0:07:11 > 0:07:15They argued they could not be prosecuted in a criminal court
0:07:15 > 0:07:18because submitting their expenses was a parliamentary procedure
0:07:18 > 0:07:22and that all procedures were covered by parliamentary privilege.
0:07:22 > 0:07:26This privilege had originally been intended to protect MPs' right
0:07:26 > 0:07:29to speak freely in the Commons.
0:07:29 > 0:07:31It came to this court
0:07:31 > 0:07:35because it involved an important constitutional issue.
0:07:35 > 0:07:37In what circumstances
0:07:37 > 0:07:43can the courts investigate what's gone on in Parliament?
0:07:43 > 0:07:47So, this was an important constitutional issue,
0:07:47 > 0:07:51and it so happened an issue of considerable public interest as well.
0:07:51 > 0:07:52All rise.
0:07:52 > 0:07:56The MPs were appealing against a lower court ruling
0:07:56 > 0:07:58which had rejected their arguments.
0:07:59 > 0:08:03It is a point of really fundamental constitutional importance.
0:08:03 > 0:08:08Parliamentary privilege is a phrase which everybody knows about,
0:08:08 > 0:08:12and in a way it's a kind of umbrella which can be put up
0:08:12 > 0:08:17and people shout "privilege" and you think, that must be an end of it.
0:08:17 > 0:08:22In many cases it may be enough to scare people away.
0:08:27 > 0:08:30As a mark of its transparency,
0:08:30 > 0:08:32all the proceedings of the court are filmed.
0:08:32 > 0:08:37Every moment of this hearing would be recorded.
0:08:37 > 0:08:39These are the first criminal prosecutions
0:08:39 > 0:08:41of members of the House of Commons
0:08:41 > 0:08:45based on a member's dealings with Parliament for over 300 years.
0:08:45 > 0:08:47Thanks very much, Mr Plemming.
0:08:47 > 0:08:50The system is that the country's top barristers
0:08:50 > 0:08:51present the case to the justices.
0:08:52 > 0:08:54In this instance they had to decide
0:08:54 > 0:08:58how far parliamentary privilege extended.
0:08:58 > 0:09:02Suppose the Member of Parliament is so aggrieved
0:09:02 > 0:09:08by what a colleague has said in a parliamentary debate
0:09:08 > 0:09:13that he confronts his colleague in the bar and he stabs him.
0:09:15 > 0:09:19My friend, Mr Fitzgerald, accepted in answer to Lord Kerr
0:09:19 > 0:09:22that this is not covered by privilege.
0:09:22 > 0:09:25The defence wanted to make it clear
0:09:25 > 0:09:28that the MPs weren't trying to avoid judgment
0:09:28 > 0:09:30but that they believed it was Parliament
0:09:30 > 0:09:32that should do the judging.
0:09:32 > 0:09:34This is not, and never has been,
0:09:34 > 0:09:37an attempt to take them above or outside the law
0:09:37 > 0:09:41is our proceedings to ensure that the allegations against them
0:09:41 > 0:09:45are dealt with by the correct law, the law of parliament.
0:09:47 > 0:09:51The court had to decide whether the ancient claims of privilege
0:09:51 > 0:09:53laid out in the Bill of Rights were being abused
0:09:53 > 0:09:57or whether they were actually applicable.
0:09:57 > 0:10:01After a two-day hearing, the justices reached a unanimous verdict
0:10:01 > 0:10:03on the MPs' appeal.
0:10:03 > 0:10:08Each of these appeals is dismissed. The reasons will be given later.
0:10:08 > 0:10:10The court will now adjourn.
0:10:10 > 0:10:13It was decided that scrutinising the claims
0:10:13 > 0:10:15would not infringe freedom of speech or debate.
0:10:15 > 0:10:20The only thing it would inhibit is the making of dishonest claims.
0:10:20 > 0:10:23By no means was it a foregone conclusion.
0:10:23 > 0:10:29It may have appeared to be a bit of an obvious answer
0:10:29 > 0:10:31but that certainly was not the case.
0:10:31 > 0:10:36Their ruling paved the way for David Chaytor to go to prison.
0:10:39 > 0:10:41I think if we'd ruled in the other direction,
0:10:41 > 0:10:43the man in the street would say,
0:10:43 > 0:10:45I think there is something wrong here,
0:10:45 > 0:10:48because if one is dealing with criminal offences,
0:10:48 > 0:10:51you would expect it to be criminal courts who resolve it.
0:10:51 > 0:10:54They're best equipped to do it. They've got all the rules,
0:10:54 > 0:10:57the rules to protect defendants, apart from anything else.
0:10:57 > 0:11:00It's a little strange if they can't simply can't enquire
0:11:00 > 0:11:03into what looks like an allegation of an ordinary crime
0:11:03 > 0:11:08because it involved parliamentarians or took place in Parliament.
0:11:11 > 0:11:15Since the court opened it has ruled on a wide range
0:11:15 > 0:11:16of controversial cases.
0:11:16 > 0:11:19Two convicted paedophiles have won the right
0:11:19 > 0:11:22to challenge their inclusion on the sex offenders register.
0:11:22 > 0:11:25The Supreme Court today ruled in a case which goes to the very heart
0:11:25 > 0:11:28of Jewish identity in that age-old question, who is a Jew?
0:11:28 > 0:11:30The importance of the court's independence
0:11:30 > 0:11:34has been highlighted by the increasing number of cases
0:11:34 > 0:11:38where the individual citizen is in conflict with the state.
0:11:38 > 0:11:42Much of the legal cut and thrust now revolves around the finer points
0:11:42 > 0:11:43of the Human Rights Act,
0:11:43 > 0:11:47as in this case, where the justices had to decide
0:11:47 > 0:11:49whether British soldiers are protected by the Act
0:11:49 > 0:11:51when serving abroad.
0:11:51 > 0:11:55If Private Smith was not under the jurisdiction of the United Kingdom,
0:11:55 > 0:11:57then whose jurisdiction WAS he under?
0:11:57 > 0:12:00Is that not really the nub of the problem?
0:12:00 > 0:12:04The fallback position here is 81c.
0:12:04 > 0:12:05No, it isn't.
0:12:05 > 0:12:08"In prison, or in such a place, or in such circumstances
0:12:08 > 0:12:12- "as to require an inquest under any other act."- The Human Rights Act.
0:12:12 > 0:12:16Ah. You think that's what that refers to. Oh, neat solution!
0:12:16 > 0:12:19But the ruling went against the soldiers.
0:12:20 > 0:12:23The Supreme Court has ruled that British troops
0:12:23 > 0:12:25are not protected by the Human Rights Act
0:12:25 > 0:12:27when they are on the battlefield abroad.
0:12:27 > 0:12:29In another human rights case,
0:12:29 > 0:12:33gay asylum seekers won their right to stay in the UK.
0:12:33 > 0:12:37To compel a homosexual person to pretend that his sexuality
0:12:37 > 0:12:39does not exist
0:12:39 > 0:12:44is to deny him his fundamental right to be who he is.
0:12:49 > 0:12:51As these justices handle
0:12:51 > 0:12:54the most significant and sensitive cases in the country,
0:12:54 > 0:12:57how they are chosen is obviously crucial.
0:12:57 > 0:13:01They are appointed by an independent panel of other lawyers
0:13:01 > 0:13:02and professionals,
0:13:02 > 0:13:04not by politicians.
0:13:04 > 0:13:11We are very fortunate that we are not political appointments.
0:13:13 > 0:13:19I don't really know what politics, if any, my colleagues have.
0:13:19 > 0:13:22Could you be seen to be political?
0:13:23 > 0:13:25Politics is not our business
0:13:25 > 0:13:29and people might use the adjective of "political" against us,
0:13:29 > 0:13:31but that's not what we're about at all.
0:13:31 > 0:13:33We're the antithesis of politics, really.
0:13:33 > 0:13:36We're detached from the political process.
0:13:36 > 0:13:39We have been removed from the House of Lords
0:13:39 > 0:13:43in order to make it absolutely clear we're detached from that process.
0:13:44 > 0:13:47However neutral they believe they are,
0:13:47 > 0:13:51judges have often been criticised for being remote from real life,
0:13:51 > 0:13:53and therefore ill-equipped for the job.
0:13:53 > 0:13:55So, what is the background of these judges
0:13:55 > 0:13:59and what was it that tipped them into a life in the law?
0:14:13 > 0:14:17Edinburgh is the hometown of Lord Hope and his ancestors.
0:14:17 > 0:14:21He's descended from a long line of Scottish lawyers
0:14:21 > 0:14:24dating back to the Lord Advocate to Kings Charles I.
0:14:24 > 0:14:29His choice of career seems in keeping with family tradition.
0:14:29 > 0:14:32You wanted to see some pictures of my previous existence.
0:14:32 > 0:14:37This is me as Dean of the Faculty of Advocates.
0:14:37 > 0:14:40I'm rather proud of that picture which shows me
0:14:40 > 0:14:43holding the Dean's baton.
0:14:43 > 0:14:45And after that...
0:14:45 > 0:14:52I was appointed to the bench as Lord Justice General of Scotland,
0:14:52 > 0:14:56and this is me looking very grim, as I thought was probably suitable
0:14:56 > 0:14:59for me as a judge in charge of criminal process in Scotland.
0:15:01 > 0:15:05A life in the law may have seemed like a foregone conclusion,
0:15:05 > 0:15:07but it was not an easy choice to make.
0:15:09 > 0:15:11I was a family of one of six
0:15:11 > 0:15:14so that such resources as there were had to be spread
0:15:14 > 0:15:15fairly thinly among us.
0:15:15 > 0:15:17So I've always had to work on the basis
0:15:17 > 0:15:20that I had to look after myself and my keep
0:15:20 > 0:15:23which is why that decision initially was a very difficult one,
0:15:23 > 0:15:26because I didn't have any money to support myself
0:15:26 > 0:15:29through the early stages of the Bar,
0:15:29 > 0:15:33but my wife, fortunately... We married shortly after I was called.
0:15:33 > 0:15:36She was a teacher, and we had enough to keep going.
0:15:41 > 0:15:45Lord Hope remembers his initial sense of fairness and unfairness
0:15:45 > 0:15:48came from his childhood experiences at Rugby School.
0:15:48 > 0:15:53Certainly at school when you were ticked off by a teacher
0:15:53 > 0:15:55for something you didn't really think you'd done,
0:15:55 > 0:15:57yes, I do remember those, yes.
0:15:57 > 0:16:01You didn't often get a chance to defend yourself, actually.
0:16:01 > 0:16:02That was my experience.
0:16:02 > 0:16:04The teacher would say you did something,
0:16:04 > 0:16:07or failed to do something, and that was that.
0:16:07 > 0:16:10That was his judgment and you didn't get a chance to say,
0:16:10 > 0:16:13"Hey, wait a moment, that was a mistake. I didn't mean to do that,"
0:16:13 > 0:16:15or "You failed to see what I did."
0:16:19 > 0:16:22The court reflects the entire United Kingdom.
0:16:22 > 0:16:27Northern Ireland is represented by Lurgan-born Lord Kerr.
0:16:27 > 0:16:30His Catholic upbringing is not an area he will discuss,
0:16:30 > 0:16:33though his career has inevitably been affected
0:16:33 > 0:16:37by the explosive mix of religion and politics.
0:16:37 > 0:16:40Lord Kerr was just 22 when he was called to the Bar.
0:16:40 > 0:16:43More recently he oversaw the Good Friday Peace Agreement.
0:16:43 > 0:16:46No-one in my family
0:16:46 > 0:16:50had been involved in the practice of law at all,
0:16:50 > 0:16:52and if I'm absolutely honest
0:16:52 > 0:16:56I chose law because I didn't want to do art,
0:16:56 > 0:16:59and I probably couldn't have done science,
0:16:59 > 0:17:01and law seemed the only option.
0:17:02 > 0:17:04Now living in London,
0:17:04 > 0:17:06His relaxed weekend routine starts
0:17:06 > 0:17:08by making breakfast for his wife.
0:17:08 > 0:17:14I don't drink tea. I don't like eggs.
0:17:14 > 0:17:16I'm afraid I loathe Marmite,
0:17:16 > 0:17:22but I'm making them because my wife loves them.
0:17:22 > 0:17:24WATER POURS
0:17:24 > 0:17:30I say to her I earn, in consequence, zillions of Brownie points.
0:17:30 > 0:17:36But it's a bit like Air Miles - you never get to spend them.
0:17:36 > 0:17:41Lord Kerr believes that it was the personality of the women
0:17:41 > 0:17:45in his childhood that gave him a driving sense of morality.
0:17:45 > 0:17:47My father died when I was quite young
0:17:47 > 0:17:54and I was therefore influenced by the women in my family.
0:17:54 > 0:17:58My mother was an extremely strong personality and my grandmother.
0:17:58 > 0:18:06Their influence imbued me with a sense of what is right and wrong.
0:18:06 > 0:18:10In one's legal career,
0:18:10 > 0:18:14although one must maintain a certain professional detachment
0:18:14 > 0:18:18occasions arise where you feel strongly
0:18:18 > 0:18:23that a particular individual's interest requires to be vindicated.
0:18:24 > 0:18:27Hello, darling.
0:18:27 > 0:18:29Set your feet later, keep moving!
0:18:33 > 0:18:37Lord Phillips has presided over some of the toughest
0:18:37 > 0:18:39and most famous legal battles of the last 20 years -
0:18:39 > 0:18:43including the trial of Robert Maxwell's sons.
0:18:43 > 0:18:45He too was privately educated
0:18:45 > 0:18:49and puts his life in the law down to one school visitor.
0:18:49 > 0:18:52I first got attracted to the law when I was at school.
0:18:52 > 0:18:56A barrister came to talk to us about the law. It was interesting.
0:18:56 > 0:19:01When I went to university, I did a degree which included law
0:19:01 > 0:19:07and found that I enormously enjoyed the academic study of law as well.
0:19:07 > 0:19:13That was the final matter that decided me that I would go into law,
0:19:13 > 0:19:18and go into the advocacy side of law and become a barrister.
0:19:18 > 0:19:22Attracted by the intellectual challenge of the law,
0:19:22 > 0:19:25the young Lord Phillips had no idea which part of the law to go into.
0:19:25 > 0:19:31When I started off, I went into an esoteric area of the law,
0:19:31 > 0:19:33called admiralty law and that was really by chance
0:19:33 > 0:19:39I had done my National Service in the Navy and learnt about ships.
0:19:39 > 0:19:42So, pure chance, I started in this area of the law.
0:19:42 > 0:19:45Unlike his colleagues, Lord Phillips didn't believe
0:19:45 > 0:19:48morality had anything to do with his career choice.
0:19:48 > 0:19:51There were lots of things I thought weren't fair.
0:19:51 > 0:19:55Usually they were respectable decisions that my parents were taking
0:19:55 > 0:19:59but I didn't go into the law
0:19:59 > 0:20:03because I wanted to put right things that were wrong.
0:20:03 > 0:20:07I went into the law because I thought it looked
0:20:07 > 0:20:11a very satisfying and interesting way of earning my livelihood.
0:20:16 > 0:20:19Lady Hale was raised in Richmond in Yorkshire.
0:20:19 > 0:20:22She didn't start her legal career as a barrister
0:20:22 > 0:20:28but as a lawyer specialising in social and family law.
0:20:28 > 0:20:31My husband does most of the main course cooking.
0:20:31 > 0:20:37I do the starters and the pudding and he does the main course.
0:20:37 > 0:20:42She's the only justice who wasn't privately educated.
0:20:44 > 0:20:50My life has been different from that of most of my colleagues.
0:20:50 > 0:20:57I went to a non-fee-paying state school. Quite a humble school.
0:20:57 > 0:21:00It gave me a good education, but I'm sure it was quite different
0:21:00 > 0:21:06from the education the boys were being given. I went to Cambridge,
0:21:06 > 0:21:13and there were three women's colleges and 21 men's colleges.
0:21:13 > 0:21:19That was very nice for us - great sex ratio and we had a good time,
0:21:19 > 0:21:23as well as learning a lot, but it was fundamentally unfair.
0:21:23 > 0:21:31So you went through a lot of your early life realising
0:21:31 > 0:21:36that...the world was not yet an equal place for women.
0:21:36 > 0:21:40Given that Lady Hale's background is so different from her colleagues,
0:21:40 > 0:21:43why does she think she was selected?
0:21:43 > 0:21:47I don't suppose it did me any harm to be a woman.
0:21:47 > 0:21:52There comes a stage when it's embarrassing not to have a woman.
0:21:52 > 0:21:57When you first arrive in this body of very...
0:21:57 > 0:22:01intelligent, powerful men,
0:22:01 > 0:22:07it takes time to work one's way in and learn and accept that maybe,
0:22:07 > 0:22:10one could do the job as well as they're doing it.
0:22:10 > 0:22:16My husband says, "They were as frightened of you as you of them,"
0:22:16 > 0:22:18but I didn't see any evidence of that.
0:22:18 > 0:22:21Lady Hale's appointment made history.
0:22:21 > 0:22:26But what difference does she make to the all-male court?
0:22:26 > 0:22:31I don't know how my colleagues are when I'm not around
0:22:31 > 0:22:36they may be just the same, I suspect that they mostly are,
0:22:36 > 0:22:41but one of the things about having a women present
0:22:41 > 0:22:47is that it does become harder to express sexist views.
0:22:47 > 0:22:51People begin to think carefully about how they express themselves.
0:22:51 > 0:22:57But I wouldn't like to accuse any of my colleagues of being sexist!
0:22:57 > 0:22:59Because I don't know.
0:22:59 > 0:23:04All things being equal, I would like six men and six women
0:23:04 > 0:23:08but the fact is that the law is tough profession.
0:23:08 > 0:23:13It's not easy to combine it with having a family,
0:23:13 > 0:23:18and so a lot of women drop out.
0:23:19 > 0:23:22We draw our membership...
0:23:24 > 0:23:29..so far, exclusively, from the upper ranks of the Judiciary
0:23:29 > 0:23:34and there aren't all that many women in those ranks to draw from.
0:23:39 > 0:23:44But the gender imbalance and the lack of any ethnic minorities
0:23:44 > 0:23:47are not the only criticisms that face the justices.
0:23:47 > 0:23:51The decisions they make impact on the lives of all of us
0:23:51 > 0:23:53so how in touch they are with ordinary life matters.
0:23:53 > 0:23:57Yet, they tend to live within a fairly narrow social circle.
0:24:00 > 0:24:05Well, unfortunately, I can be criticised
0:24:05 > 0:24:08for the fact that I come from a particular background
0:24:08 > 0:24:13that was the only way people could get into the law when I started.
0:24:13 > 0:24:21I'm a relic of the old system and people can make what they will,
0:24:21 > 0:24:24but that's just how it was.
0:24:29 > 0:24:32< How do you think people see you?
0:24:33 > 0:24:35I've no idea! HE LAUGHS
0:24:35 > 0:24:38It's very difficult to look at oneself from outside.
0:24:38 > 0:24:40I try not to be conspicuous.
0:24:40 > 0:24:44Walking around London and I hope nobody dreams for a moment
0:24:44 > 0:24:49what job I do. I don't think I have any particular significance,
0:24:49 > 0:24:52and I'm taken by surprise when people recognise me.
0:24:54 > 0:24:56As head of the court,
0:24:56 > 0:25:00Lord Phillips is adamant that they are not out of touch.
0:25:00 > 0:25:03We are ordinary people.
0:25:03 > 0:25:07We live ordinary lives, we take public transport.
0:25:07 > 0:25:09We...
0:25:09 > 0:25:11..by chance, if you like,
0:25:11 > 0:25:14have ended up in this position,
0:25:14 > 0:25:19having started life in all sorts of different walks of life.
0:25:19 > 0:25:23I did National Service in the Navy, I spent a year on the lower deck.
0:25:23 > 0:25:29I saw quite a wide variety of life in those days.
0:25:29 > 0:25:34We are ordinary people, but I think it's important others know that.
0:25:39 > 0:25:43Whatever their personal qualities, when it comes to making a decision,
0:25:43 > 0:25:48there is a set process which each justice must follow.
0:25:48 > 0:25:53Every stage requires a great deal of stamina.
0:25:53 > 0:25:59It depends how much pressure I'm under but I start my day about five.
0:25:59 > 0:26:05This morning, I'm working on a particularly difficult case
0:26:05 > 0:26:08and it's hard to get it out of your mind and sometimes I wake up earlier.
0:26:08 > 0:26:10Today, I woke up about three,
0:26:10 > 0:26:13got up and worked for a bit and went back to bed
0:26:13 > 0:26:16and then got up again at five.
0:26:16 > 0:26:20These are intellectual problems not stressing problems
0:26:20 > 0:26:22but if you are concentrating very hard
0:26:22 > 0:26:26on a particular conundrum it doesn't go away.
0:26:26 > 0:26:32So you have a few hours' sleep, then the problem takes over again.
0:26:32 > 0:26:37The first part of the process is a long and lonely task -
0:26:37 > 0:26:39a mass of reading.
0:26:39 > 0:26:45The parties have to provide us with written arguments on each side
0:26:45 > 0:26:48and they may be a 100-pages long.
0:26:48 > 0:26:50We had a case the other day in which
0:26:50 > 0:26:56they produced for us over 400 authorities, or decided cases.
0:26:56 > 0:27:04Sometimes when you've read it, you think, "This is a difficult issue"
0:27:04 > 0:27:10when I read the appellant's case, I thought that was utterly convincing.
0:27:10 > 0:27:13Until I got to reading the arguments advanced on the other side.
0:27:13 > 0:27:18I hadn't, at the moment, got a view on what's the right answer.
0:27:26 > 0:27:31The next stage requires the justices to be at the court.
0:27:31 > 0:27:34Equipped with the facts from their initial reading,
0:27:34 > 0:27:37they will listen to barristers present both sides of the case.
0:27:37 > 0:27:39< All rise!
0:27:39 > 0:27:45What will be argued over are key points and principles of the law.
0:27:47 > 0:27:52- What's your position on that?- It's a counter-factual question, my lord.
0:27:52 > 0:27:56The debates that are conducted in the court
0:27:56 > 0:28:01are...for the most part, extremely stimulating
0:28:01 > 0:28:04and of a very high order.
0:28:04 > 0:28:08- We respectably say that it is... - What is wrong with that analysis?
0:28:08 > 0:28:12It is inapt to describe that as "objective"
0:28:12 > 0:28:17and it's inapt because it leads to the consequence we described.
0:28:17 > 0:28:23The nimble-footedness of counsel, the improvisational ability,
0:28:23 > 0:28:29the capacity to switch tack are all very impressive.
0:28:29 > 0:28:32It's an enjoyable experience to participate in.
0:28:32 > 0:28:37- That a point in your favour. - I know! I understand that entirely.
0:28:37 > 0:28:40Maybe I don't seem sufficiently grateful!
0:28:40 > 0:28:42ALL LAUGH
0:28:42 > 0:28:47The court breaks at lunch giving the justices a chance to talk.
0:28:47 > 0:28:50It will be the first of many private exchanges.
0:28:50 > 0:28:51At the end of the hearing,
0:28:51 > 0:28:58we have meeting at which everybody gives a provisional answer.
0:28:58 > 0:29:02What they think the answer to the question we've been posed should be.
0:29:02 > 0:29:07Sometimes everybody thinks the same, it's pretty clear,
0:29:07 > 0:29:09and the odds are that nothing's going to change.
0:29:09 > 0:29:14Sometimes, you could even have three different points of view
0:29:14 > 0:29:16as to what the right answer was.
0:29:16 > 0:29:20Views can be expressed forthrightly and firmly.
0:29:20 > 0:29:26That's as it should be. There should be no holding back...
0:29:26 > 0:29:30of strongly held opinions.
0:29:30 > 0:29:34We try very hard to respect each individual's independence
0:29:34 > 0:29:37and each individual's views,
0:29:37 > 0:29:40but that's to say that we don't advance our own views
0:29:40 > 0:29:44with a degree of advocacy, because after all,
0:29:44 > 0:29:46we all started life as advocates.
0:29:48 > 0:29:51These hearings may take two or three days,
0:29:51 > 0:29:54but eventually the case will have been presented
0:29:54 > 0:29:57and the judges decide amongst themselves which one of them
0:29:57 > 0:29:59will write the lead judgment.
0:29:59 > 0:30:01At that stage, it's back to gathering up
0:30:01 > 0:30:03an enormous amount of written material,
0:30:03 > 0:30:07cases to revise and new material that's been cited.
0:30:09 > 0:30:11If Lord Hope is writing the judgment,
0:30:11 > 0:30:13it also means a long journey.
0:30:13 > 0:30:15The best way he can approach the task
0:30:15 > 0:30:18is to go where he can guarantee silence.
0:30:18 > 0:30:20The problem in London is that,
0:30:20 > 0:30:22because we're busy hearing cases all the time,
0:30:22 > 0:30:27you don't get time to settle down and really read and think,
0:30:27 > 0:30:30whereas here I find it very peaceful.
0:30:32 > 0:30:35What happens is that I have a case like this,
0:30:35 > 0:30:38which I'm going to be writing a judgment on later,
0:30:38 > 0:30:41and I've carried north with me the written cases,
0:30:41 > 0:30:45which I've been able to shrink down to a manageable size,
0:30:45 > 0:30:46which I can put in my bag.
0:30:46 > 0:30:51I couldn't possibly carry all the authorities that we've cited.
0:30:54 > 0:30:57Having created the space for quiet concentration,
0:30:57 > 0:31:00Lord Hope can now approach the judgment.
0:31:00 > 0:31:04The kind of work we do is very much an intellectual exercise
0:31:04 > 0:31:07of identifying issues and working them out
0:31:07 > 0:31:10according to their quality and their weight.
0:31:10 > 0:31:12And that involves a lot of analysis.
0:31:12 > 0:31:15You need to express yourself very clearly in writing.
0:31:15 > 0:31:18You have to have a clear idea of the thread you're following
0:31:18 > 0:31:22and you need to be aware of the audience you're addressing.
0:31:22 > 0:31:25You're writing not so much for yourself as for other people
0:31:25 > 0:31:28who are going to have to use the judgment.
0:31:28 > 0:31:31The aim is a balanced and just result.
0:31:31 > 0:31:35But as it's impossible not to have opinions or feelings,
0:31:35 > 0:31:38the question of impartiality is a serious one.
0:31:38 > 0:31:42It's at the heart of the idea of justice.
0:31:42 > 0:31:46I don't think one ought to be too emotional, frankly.
0:31:46 > 0:31:49The trouble with emotion is that one tends to take sides
0:31:49 > 0:31:52based on emotion rather than rational thinking.
0:31:52 > 0:31:55And that isn't a very sound basis for judgment.
0:31:55 > 0:31:56Somehow, as a judge,
0:31:56 > 0:31:59you have to detach yourself from the emotion of the occasion
0:31:59 > 0:32:03and you are probably the one person who can do that.
0:32:03 > 0:32:06You learn to become quite detached, actually.
0:32:06 > 0:32:09It's long experience in court work.
0:32:09 > 0:32:13In the case Lord Hope is looking at, an individual's risk of bankruptcy
0:32:13 > 0:32:15hangs in the balance.
0:32:15 > 0:32:19As it happens, this particular case is right in the field of emotion
0:32:19 > 0:32:23in the sense that people's lives are being very much affected.
0:32:23 > 0:32:25and one can feel a genuine feeling of sympathy
0:32:25 > 0:32:27for the people who are in that position.
0:32:29 > 0:32:34The system trusts that a judge will know the right place for emotion.
0:32:37 > 0:32:41Yet Lord Phillips recognises there is a tension between
0:32:41 > 0:32:43the decision he may like to reach
0:32:43 > 0:32:46and the one the law tells him he should reach.
0:32:48 > 0:32:50You need objectivity.
0:32:50 > 0:32:56You can't afford to let your own feelings or emotions take charge,
0:32:56 > 0:33:01because what you feel, what you might like the answer to be,
0:33:01 > 0:33:06is not necessarily relevant.
0:33:06 > 0:33:10This process of weighing up how you think and how you feel
0:33:10 > 0:33:15means justices may not commit to a decision until surprisingly late on.
0:33:15 > 0:33:18There are some cases where, until you're writing the judgment,
0:33:18 > 0:33:20you don't see where it's taking you.
0:33:20 > 0:33:24It may be driving you in a direction which you really didn't want to go.
0:33:24 > 0:33:26But this is what the law says.
0:33:26 > 0:33:29There's no avoiding this particular answer.
0:33:30 > 0:33:33It's because emotions do have a place in the process,
0:33:33 > 0:33:35that a judge has to be so self aware.
0:33:35 > 0:33:39It would be quite wrong to say that one doesn't feel emotionally.
0:33:39 > 0:33:44We have individuals who come into our court to hear
0:33:44 > 0:33:47how we are going to resolve the cases
0:33:47 > 0:33:51in which they personally have been involved, and some of these cases
0:33:51 > 0:33:55involve a great deal of emotion.
0:33:55 > 0:33:58One has enormous sympathy for the individual.
0:33:58 > 0:34:01You can see how much this case means to them
0:34:01 > 0:34:06and sometimes, you know that the decision that you are handing down
0:34:06 > 0:34:09is going to cause them immense distress.
0:34:09 > 0:34:12And that is something that you feel yourself.
0:34:19 > 0:34:22One case where the justices were torn between
0:34:22 > 0:34:25following the law and following their feelings
0:34:25 > 0:34:28was a high-profile case that affected millions of people.
0:34:28 > 0:34:30Bank charges.
0:34:30 > 0:34:34Millions of bank customers hoping to get a refund on overdraft fees
0:34:34 > 0:34:36will be disappointed tonight. The Supreme Court
0:34:36 > 0:34:39has overruled previous judgments and it means
0:34:39 > 0:34:42there'll be no major investigation of charges on customers
0:34:42 > 0:34:44who go into the red without permission.
0:34:44 > 0:34:48Many customers had felt bank overdraft charges were wrong
0:34:48 > 0:34:52and had expected that The Office of Fair Trading would investigate.
0:34:52 > 0:34:53But their hopes were dashed
0:34:53 > 0:34:56by one of the first big judgments of the court.
0:34:56 > 0:35:02We have held that overdraft charges form part of the price or enumeration
0:35:02 > 0:35:05for the package of services that the banks provide
0:35:05 > 0:35:08to their current account customers.
0:35:08 > 0:35:12This means that the OFT cannot consider whether,
0:35:12 > 0:35:16in imposing those charges, the banks are giving fair value for money.
0:35:16 > 0:35:19Campaigners felt extremely let down.
0:35:19 > 0:35:22What we need is fairness. We haven't got fairness.
0:35:22 > 0:35:24We've been told it can't be assessed.
0:35:24 > 0:35:27The banks have got away with pilfering our accounts for years.
0:35:27 > 0:35:29The big institutions of the law
0:35:29 > 0:35:31have just backed up the big institutions of finance.
0:35:31 > 0:35:35Banking charges is a good example of a case
0:35:35 > 0:35:39which was potentially very puzzling for the public.
0:35:39 > 0:35:43The public might well have understood that the real issue was
0:35:43 > 0:35:46whether bank charges were fair or not.
0:35:46 > 0:35:48But that wasn't what we had to decide.
0:35:48 > 0:35:50We had to decide whether the OFT themselves
0:35:50 > 0:35:54could look into that question and we decided, looking at the statute
0:35:54 > 0:35:57that set them up, that, no, they couldn't. It was off limits for them.
0:35:57 > 0:36:01Finding the OFT remit was laid out clearly in law,
0:36:01 > 0:36:03the court had no room to manoeuvre.
0:36:03 > 0:36:07They were not able to rule on what they thought the law should be,
0:36:07 > 0:36:08only on what it actually was.
0:36:08 > 0:36:11I think, personally, I would have been quite in favour
0:36:11 > 0:36:14of The Office of Fair Trading looking into bank charges.
0:36:14 > 0:36:18It's a good example of a case where, if I'd had complete freedom to decide
0:36:18 > 0:36:20whatever I wanted, I might well have said,
0:36:20 > 0:36:22"Yes, you go and have a look at them."
0:36:22 > 0:36:25But we had to look at the statute and we decided that, no,
0:36:25 > 0:36:27it simply wasn't within their terms of reference.
0:36:31 > 0:36:34It's because the justices are bound by the law
0:36:34 > 0:36:38that there will be times when even they cannot deliver fairness.
0:36:38 > 0:36:42You never like reaching a judgment which you think is not fair.
0:36:42 > 0:36:44You will, if you possibly can,
0:36:44 > 0:36:47reach a construction which you think does justice.
0:36:47 > 0:36:51But occasionally, you have to reach a decision which you regret.
0:36:51 > 0:36:55There are certainly cases like that where you're just unable,
0:36:55 > 0:36:57because of the way the law works,
0:36:57 > 0:37:01the way you're applying law, after all, where the result seems
0:37:01 > 0:37:05very tough and one grieves for the individual who is affected by this,
0:37:05 > 0:37:07but you're trapped by the way the law works
0:37:07 > 0:37:10into a situation where you've no alternative
0:37:10 > 0:37:12but to make that decision.
0:37:12 > 0:37:15In those cases, would you say that justice has been done?
0:37:15 > 0:37:18Well, that's again a relative term.
0:37:18 > 0:37:22There are some things that are created by law beyond our control
0:37:22 > 0:37:25which you may think is not very just.
0:37:25 > 0:37:28Justice, obviously, is a very important part
0:37:28 > 0:37:30of the work that we do.
0:37:30 > 0:37:32We are here to administer justice.
0:37:32 > 0:37:35But we are here to administer justice according to law.
0:37:37 > 0:37:43And there will always be occasions when one feels that the result
0:37:43 > 0:37:46that one is impelled to is not necessarily
0:37:46 > 0:37:49the one that one would wish to reach.
0:37:53 > 0:37:56But even if each judge rules according to the law,
0:37:56 > 0:37:59justice very often faces another challenge.
0:38:03 > 0:38:06Once the lead judgment has been written,
0:38:06 > 0:38:08it is e-mailed to the other justices on the panel
0:38:08 > 0:38:10and at this point, it's quite possible
0:38:10 > 0:38:12that the others are unable to agree.
0:38:12 > 0:38:15The best that can be done then is a majority ruling,
0:38:15 > 0:38:18with the dissenters writing their own judgments.
0:38:18 > 0:38:21But is that satisfactory?
0:38:21 > 0:38:24Doesn't that mean a different justice on the panel
0:38:24 > 0:38:26would have meant a different result?
0:38:28 > 0:38:29Morning!
0:38:33 > 0:38:37If you sit five out of the 12 justices,
0:38:37 > 0:38:40and you reach the decision three-two,
0:38:40 > 0:38:43it's very obvious that if you had a different five,
0:38:43 > 0:38:48you might have reached decision two-three, the other way.
0:38:48 > 0:38:54And this is one reason why, when we have a really important case,
0:38:54 > 0:38:56we sit more than five -
0:38:56 > 0:38:58seven, or even nine -
0:38:58 > 0:39:02so that we involve a larger proportion of the court
0:39:02 > 0:39:04in reaching the decision.
0:39:04 > 0:39:06It could still be five-four.
0:39:06 > 0:39:08Absolutely, and it quite often happens
0:39:08 > 0:39:12that you sit seven or nine and you break that way,
0:39:12 > 0:39:15because often, when you do it, it's because
0:39:15 > 0:39:20the...issue involved is particularly difficult. Or it may be a case
0:39:20 > 0:39:24where you're considering whether we ought to depart from
0:39:24 > 0:39:27one of the decisions we've made in the past.
0:39:29 > 0:39:32And that's the kind of knife-egde situation
0:39:32 > 0:39:35in which opinions can differ.
0:39:35 > 0:39:38So, what does that say about justice?
0:39:41 > 0:39:45I think it says about justice that no judge is omnipotent
0:39:45 > 0:39:47and infallible.
0:39:49 > 0:39:54It's the art of doing the very best you can to get the right answer.
0:39:54 > 0:39:58I think that anyone who expresses themselves as absolutely certain,
0:39:58 > 0:40:06without any shadow of doubt, is either...a genius or a fool.
0:40:06 > 0:40:12I think that...one can't be absolutely certain
0:40:12 > 0:40:17in a significant number of cases that one reaches a view on.
0:40:18 > 0:40:23Making the best of an uncomfortable situation, the justices point out
0:40:23 > 0:40:24that there can be a benefit
0:40:24 > 0:40:27in putting these dissenting views on the record.
0:40:27 > 0:40:29I think it's more satisfactory
0:40:29 > 0:40:32if we all form the same view with certainty.
0:40:32 > 0:40:37But sometimes, when it is difficult, it's not a bad thing
0:40:37 > 0:40:44to have a majority and a minority view. One can get things wrong.
0:40:44 > 0:40:48There have been cases in the past where it's become recognised
0:40:48 > 0:40:53that it was the minority, maybe even only a single judge,
0:40:53 > 0:40:57who had seen the case properly and got the right answer.
0:40:59 > 0:41:01One judge may interpret the law differently
0:41:01 > 0:41:03because of what they alone bring to the case.
0:41:03 > 0:41:06It may be their legal or their personal experience.
0:41:06 > 0:41:12There is quite a lot of room for individual interpretation.
0:41:12 > 0:41:17From time to time, one's own particular approach...
0:41:17 > 0:41:21to concepts of justice and fairness comes in,
0:41:21 > 0:41:23as does one's own particular background
0:41:23 > 0:41:26and experience, which may lead you on to look at
0:41:26 > 0:41:30particular factual situations in a different way.
0:41:35 > 0:41:38- 'For better, for worse. - For better, for worse.
0:41:38 > 0:41:42- 'For richer, for poorer. - For richer, for poorer.'
0:41:42 > 0:41:45A powerful example of how Lady Hale's experience as a woman
0:41:45 > 0:41:49and her background in family law could inform her view of a case,
0:41:49 > 0:41:51was one involving marriage and divorce.
0:41:51 > 0:41:53In Britain, prenuptial agreements
0:41:53 > 0:41:57which set out what would happen financially if a marriage ended,
0:41:57 > 0:42:00have not been considered legally binding.
0:42:00 > 0:42:04But in 2010, decades of legal tradition
0:42:04 > 0:42:07were challenged in one major divorce case.
0:42:09 > 0:42:12German heiress, Katrin Radmacher,
0:42:12 > 0:42:15with tens of millions of pounds to her name,
0:42:15 > 0:42:17had divorced Nicolas Granatino.
0:42:19 > 0:42:22Unlike most divorce cases, it was therefore the wife
0:42:22 > 0:42:23who was the wealthier partner
0:42:23 > 0:42:26and who had asked her husband to sign a prenup.
0:42:27 > 0:42:31You say they were madly in love and she says, "Unless you sign this,
0:42:31 > 0:42:35"my father's going to disinherit me." Is any man who's madly in love
0:42:35 > 0:42:37going to say, "Oh, well, never mind"?
0:42:37 > 0:42:40Those were the circumstances in which he signed.
0:42:40 > 0:42:42The court was being asked to make legal history
0:42:42 > 0:42:45and give some weight to the prenup.
0:42:45 > 0:42:47Both sides were agreed, they can't be binding.
0:42:47 > 0:42:52The judge always has a discretion to say the operation of this agreement
0:42:52 > 0:42:55in these particular circumstances would be quite unfair.
0:42:55 > 0:42:57That was common ground that,
0:42:57 > 0:43:01ultimately, it was for the judge to decide. What wasn't common ground
0:43:01 > 0:43:03was, how much weight do you attach to it?
0:43:03 > 0:43:06Lady Hale took the view that prenups
0:43:06 > 0:43:08tended to work against the interests of women,
0:43:08 > 0:43:12who had struggled for years to be treated equally in law.
0:43:12 > 0:43:18A prenuptial agreement is designed to take away that equality,
0:43:18 > 0:43:23to deprive the less powerful party to the marriage
0:43:23 > 0:43:28of what she, and it is usually she, would otherwise be entitled to.
0:43:28 > 0:43:32Mainstream feminist thinking roundly condemns these agreements
0:43:32 > 0:43:34as being oppressive and discriminatory.
0:43:36 > 0:43:40Despite Lady Hale's concerns, all the male justices
0:43:40 > 0:43:44thought couples should be trusted to make their own decisions.
0:43:44 > 0:43:48Ultimately, the prenuptial case seemed to us
0:43:48 > 0:43:51to admit if only one conclusion,
0:43:51 > 0:43:56and that was that here was a highly intelligent couple
0:43:56 > 0:44:01who had entered this agreement willingly.
0:44:01 > 0:44:05Therefore, significant weight should be given to it.
0:44:06 > 0:44:10But Lady Hale thought there was something flawed in this logic.
0:44:10 > 0:44:14It failed to recognise that marriage is an exceptional contract.
0:44:15 > 0:44:20People getting married are not in autonomous situations.
0:44:20 > 0:44:24It's not like doing a commercial deal.
0:44:24 > 0:44:28People make choices. They compromise their own interests
0:44:28 > 0:44:31for the greater good of the family as a whole,
0:44:31 > 0:44:34whether it's the other spouse or whether it's the children
0:44:34 > 0:44:37or whether it's all of them. At least one hopes they do.
0:44:37 > 0:44:41Ultimately, after two days, there was a verdict.
0:44:41 > 0:44:44A German heiress, worth tens of millions of pounds,
0:44:44 > 0:44:47has won a landmark divorce case at the Supreme Court.
0:44:47 > 0:44:51The judges have ruled that Katrin Radmacher's prenuptial agreements
0:44:51 > 0:44:53with her investment banker husband was valid.
0:44:53 > 0:44:57The court's decision was a landmark. From now on,
0:44:57 > 0:45:01prenups could be given significant weight in divorce cases.
0:45:01 > 0:45:05Katrine and her ex-husband had promised each other that
0:45:05 > 0:45:09if anything went wrong between them, they wouldn't make financial claims
0:45:09 > 0:45:14against each other. It was meant to be a marriage for love,
0:45:14 > 0:45:16not for money.
0:45:16 > 0:45:19But it was a majority ruling
0:45:19 > 0:45:24with all the men thinking one way and Lady Hale the other.
0:45:24 > 0:45:27Well, of course, it's obvious, if I may say so, that people will
0:45:27 > 0:45:33immediately make a connection between the fact that
0:45:33 > 0:45:39the eight judges that comprised the majority were male,
0:45:39 > 0:45:45and the single justice who dissented was female.
0:45:45 > 0:45:48But in my judgment, there is no correlation to be made.
0:45:48 > 0:45:53For Lady Hale it was a blow for women's rights.
0:45:53 > 0:45:58It was striking that all the men thought one thing
0:45:58 > 0:45:59and I thought something else.
0:45:59 > 0:46:04And so I felt it necessary to say so but I hope they'll forgive me.
0:46:07 > 0:46:10But the most serious battle the court has faced
0:46:10 > 0:46:12was not among themselves.
0:46:12 > 0:46:17It has been between them and the Government. The issue is terrorism.
0:46:17 > 0:46:21The Government on one side would be championing security,
0:46:21 > 0:46:25the Judiciary, liberty.
0:46:25 > 0:46:28The event that triggered this conflict was 9/11.
0:46:28 > 0:46:30BIG BEN CHIMES
0:46:30 > 0:46:32- REPORTER:- An astonishing series of acts of terrorism
0:46:32 > 0:46:36has been perpetrated in the United States. Countless numbers of people
0:46:36 > 0:46:39were killed and injured, when at least three...
0:46:39 > 0:46:42The Blair government responded with an unusual measure.
0:46:42 > 0:46:46They passed an anti-terrorism act that would allow them to lock up
0:46:46 > 0:46:49foreign suspects without trial.
0:46:49 > 0:46:54The change was this feeling we are
0:46:54 > 0:46:57all under threat and in a state of
0:46:57 > 0:47:01national emergency. There's always a reaction to play it safe,
0:47:01 > 0:47:08if you're worried about somebody lock him up. You only had to state
0:47:08 > 0:47:11that proposition to realise the dangers it carries.
0:47:11 > 0:47:13Who's going to take the decision? The Executive.
0:47:15 > 0:47:19By 2004, the Government had imprisoned 17 suspects
0:47:19 > 0:47:21in Belmarsh Prison.
0:47:21 > 0:47:24None of them had been charged. The chain of events
0:47:24 > 0:47:27that followed, threatened to destabilise
0:47:27 > 0:47:30the entire relationship between the Executive and the Judiciary.
0:47:30 > 0:47:33For not only was the Government violating
0:47:33 > 0:47:35an ancient British principle,
0:47:35 > 0:47:38they were contradicted their own Human Rights Act,
0:47:38 > 0:47:42passed three years earlier.
0:47:42 > 0:47:46Just think what the great majority of the British public would think,
0:47:46 > 0:47:49if a member of their family could be hauled off by the police,
0:47:49 > 0:47:54and locked up indefinitely, not told why, not given the evidence,
0:47:54 > 0:47:57not given an opportunity to challenge.
0:47:57 > 0:48:02It's the thin edge of wedge, it's fine if you start on the assumption
0:48:02 > 0:48:05that they're not going to lock up anyone unless they are a terrorist.
0:48:05 > 0:48:07You just can't quite prove it.
0:48:07 > 0:48:10But the risk is that they're going to lock up people who are innocent,
0:48:10 > 0:48:13who are not terrorists.
0:48:13 > 0:48:17And these people are going to be there, indefinitely,
0:48:17 > 0:48:19on suspicion.
0:48:19 > 0:48:22And that is such a horrific prospect.
0:48:24 > 0:48:27In 2004, the highest court in the land was still the House of Lords
0:48:27 > 0:48:30with the Law Lords presiding. And it was here that the case
0:48:30 > 0:48:35between the imprisoned suspects and the Government ended up.
0:48:35 > 0:48:40The prisoner's lawyers pointed out an error in the Government's logic.
0:48:40 > 0:48:44If the act was designed to lock up potential terrorists,
0:48:44 > 0:48:45why lock up only foreigners.
0:48:45 > 0:48:51It doesn't take a lot of imagination to realise that is not rational.
0:48:51 > 0:48:57Because there are plenty of home-grown, non-foreign terrorists,
0:48:57 > 0:49:02whom they were not going to lock up, or suspected terrorists,
0:49:02 > 0:49:05in the same way. And the one thing that the law
0:49:05 > 0:49:08does not allow you to do, is be irrational.
0:49:08 > 0:49:14The Government's case hinged on whether the threat the country faced
0:49:14 > 0:49:17was so serious that they could depart from the Human Rights Act.
0:49:17 > 0:49:20If it wasn't, it meant the Government
0:49:20 > 0:49:23was violating its own treaty and threatening fundamental freedoms.
0:49:23 > 0:49:27An enormous amount was at stake. The verdict made headline news.
0:49:29 > 0:49:33Good evening. Today's ruling on the Government's policy
0:49:33 > 0:49:35on detaining foreign suspects
0:49:35 > 0:49:39without trial is of such constitutional significance
0:49:39 > 0:49:40that nine, rather than five Law Lords sat in
0:49:40 > 0:49:46judgment and they have delivered an extraordinary strong denunciation.
0:49:46 > 0:49:50Fundamental rights are protected in our democracy they belong to
0:49:50 > 0:49:57everyone whoever they may be and wherever they have come from.
0:49:58 > 0:50:00The Law Lords rejected the Government case.
0:50:00 > 0:50:04Lord Hope recognised how much was at stake.
0:50:04 > 0:50:07It's not very difficult to understand that if the rule of law
0:50:07 > 0:50:13was not there then the pressures would go on pressing and the extent
0:50:13 > 0:50:17of the invasion of liberty would widen, people would disappear,
0:50:17 > 0:50:20things would be silenced, freedom of press would be trampled on.
0:50:20 > 0:50:22It's our job to see that that simply does not happen.
0:50:24 > 0:50:28The Government reacted strongly and accused the Judiciary of
0:50:28 > 0:50:33being irresponsible. Jack Straw went public on the radio.
0:50:33 > 0:50:37The Law Lords, and I understand their anxieties, and all of us
0:50:37 > 0:50:41are very anxious about these powers are simply wrong and on
0:50:41 > 0:50:45this huge dilemma of how you balance liberty and order,
0:50:45 > 0:50:50the most important liberty, is the right to life.
0:50:50 > 0:50:53They were very upset about our decision.
0:50:53 > 0:50:58It's a good illustration that in an acute emergency decisions can
0:50:58 > 0:51:03be taken that threaten the rule of law
0:51:03 > 0:51:08and which require objective and dispassionate review.
0:51:08 > 0:51:14Did you have any doubts at that time?
0:51:14 > 0:51:17No, I thought the decision was absolutely right.
0:51:21 > 0:51:23But the battle was not over.
0:51:23 > 0:51:27The Government believed that there were terrorists living amongst us,
0:51:27 > 0:51:30and insisted on special powers to contain them.
0:51:30 > 0:51:34The result was Control Orders, a form of house arrest
0:51:34 > 0:51:38keeping suspects confined for up to 18 hours a day.
0:51:38 > 0:51:44Within months of the new orders, the terrorist threat became a fact.
0:51:45 > 0:51:48Central London is rocked by a series of terrorist attacks.
0:51:48 > 0:51:51Police speak of many casualties.
0:51:51 > 0:51:53The terrorists hit without warning
0:51:53 > 0:51:57at the height of the morning rush hour on the crowded transport system.
0:51:58 > 0:52:01The case for control orders suddenly seemed stronger.
0:52:01 > 0:52:05What has been confirmed today, is that terrorist cells
0:52:05 > 0:52:08continue to operate to devastating effect in the UK.
0:52:12 > 0:52:17The mood had changed. There was an intense nervousness.
0:52:17 > 0:52:19A jumpiness. How would the Judiciary act now,
0:52:19 > 0:52:22if a challenge to the new control orders came before them?
0:52:22 > 0:52:26The measures were designed to get round the Human Rights Act
0:52:26 > 0:52:31by restricting a suspect's liberty not by depriving them of it.
0:52:31 > 0:52:34The problem was distinguishing between the two.
0:52:34 > 0:52:39the only control orders you can have are ones that don't involve
0:52:39 > 0:52:43a deprivation but only a restriction on liberty.
0:52:43 > 0:52:48How long do they have to be under house arrest
0:52:48 > 0:52:51for it to be deprivation?
0:52:51 > 0:52:54How long do they have to be allowed out of the house
0:52:54 > 0:52:56for it to be merely a restriction?
0:52:57 > 0:53:01Making this distinction was not easy, but it was essential.
0:53:01 > 0:53:05It is extremely difficult to prescribe
0:53:05 > 0:53:08whether it should be 12 hours or 12 days.
0:53:08 > 0:53:12But the law acts on evidence
0:53:12 > 0:53:15and what we require
0:53:15 > 0:53:20to be persuaded of, is that there is justification, in the form
0:53:20 > 0:53:24of tangible evidence for any encroachment
0:53:24 > 0:53:26on the liberty of the subject.
0:53:30 > 0:53:34Suspects living under control orders challenged the Government
0:53:34 > 0:53:37over the length and won. 18 hours was ruled unlawful.
0:53:37 > 0:53:40So next the Government settled on 16 hours but
0:53:40 > 0:53:43moved a suspect miles from his home.
0:53:43 > 0:53:47Now completely isolated from his family and friends, the question was
0:53:47 > 0:53:51whether this was so harsh that it was almost as bad as prison.
0:53:51 > 0:53:58The result was in 2010, the new government found itself in court.
0:53:58 > 0:54:0416 hours, you know if you are the Secretary of State that you
0:54:04 > 0:54:09are in very dangerous territory and therefore there is nothing surprising
0:54:09 > 0:54:12about saying and you have better have done your homework on the effects.
0:54:12 > 0:54:14Had the Government's control order
0:54:14 > 0:54:17virtually destroyed the suspect's family life?
0:54:17 > 0:54:22We are talking about an individual who has only been moved an hour
0:54:22 > 0:54:26- and three quarters away from London. - With respect it's a pretty big only.
0:54:26 > 0:54:31I have members of my family who live in London and others who live rather
0:54:31 > 0:54:36closer than that and the difference in the occasions on which I see them
0:54:36 > 0:54:40- is quite enormous.- Conversely one might also point to the fact that
0:54:40 > 0:54:43for some people and hour and three quarters
0:54:43 > 0:54:45by train is daily commuting.
0:54:45 > 0:54:48Imagine the children's reaction every week,
0:54:48 > 0:54:50every Sunday being dragged
0:54:50 > 0:54:54off to that place, nobody would expect that to carry on indefinitely
0:54:54 > 0:54:59would they? Imagine it?
0:54:59 > 0:55:03"Another Sunday, oh, gosh, off up there again."
0:55:03 > 0:55:05The Government lost the case again.
0:55:05 > 0:55:10Separated from the heat of politics, the justices had decided
0:55:10 > 0:55:11that this control order went too far.
0:55:11 > 0:55:15It's a how long is a piece of string question to some extent.
0:55:15 > 0:55:21And the kind of area where you need an objective tribunal
0:55:21 > 0:55:26listening to argument on both sides, and ultimately, drawing the line.
0:55:26 > 0:55:29But no-one can suggest that there is a particular
0:55:29 > 0:55:32right place and a wrong place to draw that line.
0:55:32 > 0:55:36But all these defeats for the Government have raised
0:55:36 > 0:55:39a fundamental constitutional question.
0:55:39 > 0:55:40Should an unelected court
0:55:40 > 0:55:45be telling a democratically elected government what it can and can't do.
0:55:45 > 0:55:50We apply the human rights convention, because that's what Parliament has
0:55:50 > 0:55:53told us to do. And until Parliament tells us otherwise,
0:55:53 > 0:55:56that is our duty, and we are complying
0:55:56 > 0:55:59with the wishes of Parliament in doing that.
0:55:59 > 0:56:04And Parliament hasn't taken the step of saying, right,
0:56:04 > 0:56:07we're going to tear up human rights, and it won't.
0:56:07 > 0:56:12- Why won't it?- Because it appreciates
0:56:12 > 0:56:16that fundamental human rights are of fundamental importance.
0:56:17 > 0:56:21In fact the present government is still talking about reforming the
0:56:21 > 0:56:25Human Rights Act. It also intends to replace control orders.
0:56:25 > 0:56:30But as long as Parliament is passing complex laws and signing treaties,
0:56:30 > 0:56:35there is potential tension between the Government and the Judiciary.
0:56:35 > 0:56:38Everyone learns lessons, and the way the system works in this country,
0:56:38 > 0:56:41and it's to the credit of everybody, including the Executive,
0:56:41 > 0:56:43it's that they respect decisions taken against them.
0:56:43 > 0:56:45They may not like them, but there they are.
0:56:45 > 0:56:50One hopes that that process will have, as it were, cleared the way
0:56:50 > 0:56:54for a future where the Executive is more aware of what can be done
0:56:54 > 0:56:57and what can't be done, and the way in which
0:56:57 > 0:56:59it should go about its affairs.
0:56:59 > 0:57:04We must be a bulwark against executive decisions
0:57:04 > 0:57:10which we are convinced infringe, impermissibly,
0:57:10 > 0:57:14fundamental human rights, and that, I think,
0:57:14 > 0:57:20is a fundamental precept.
0:57:20 > 0:57:26It's importance can't be overestimated,
0:57:26 > 0:57:31that the Executive cannot have access to unbridled power.
0:57:34 > 0:57:37This series of high profile battles
0:57:37 > 0:57:40between the Government and the Judiciary have made it
0:57:40 > 0:57:44absolutely clear to the justices how crucial their independence is.
0:57:44 > 0:57:49We have to fulfil the function we have as guardians of the rule of law
0:57:49 > 0:57:53and if it comes into collision with the political view then so be it.
0:57:53 > 0:57:57The final Court of Appeal had always been independent
0:57:57 > 0:58:00of the Government, even when they were sitting in the House of Lords,
0:58:00 > 0:58:05but this new clear physical separation between Parliament and
0:58:05 > 0:58:09the Supreme Court, adds weight to this vital truth.
0:58:09 > 0:58:12Those who make the law should be answerable to the law.
0:58:12 > 0:58:17The rule of law is a principle
0:58:17 > 0:58:22that applies in all situations.
0:58:22 > 0:58:27And once you, even if you're a government, have signed up to
0:58:27 > 0:58:32binding legal principles, there has to be somebody who decided
0:58:32 > 0:58:37whether you're complying with what you have signed up to or not.
0:58:37 > 0:58:43And the independent Judiciary are the best body to do that.
0:58:53 > 0:58:56Subtitles by Red Bee Media Ltd
0:58:56 > 0:58:59E-mail subtitling@bbc.co.uk