:00:15. > :00:19.ring in Lille. Now it is time for There aren't many parts of the
:00:19. > :00:23.British establishment that had escaped a battering in recent years.
:00:23. > :00:28.Parliament, the press, the police have all been embroiled and
:00:28. > :00:33.scandals and the ball plummeted in the public's esteem. One of the few
:00:33. > :00:39.institutions to have escaped so far is the judiciary, so long and so
:00:39. > :00:44.often held up as a model around the world. But, with the judge-LED
:00:44. > :00:50.report into the British press about to be published, is there a danger
:00:50. > :00:52.that the judiciary could be consumed by controversy. If the
:00:52. > :00:58.British Government on a constitutional collision course
:00:58. > :01:06.with what it sees as an over- powerful and unaccountable bunch of
:01:06. > :01:16.judges. My guest today is Lord Woolf, England and Wales's most
:01:16. > :01:17.
:01:17. > :01:27.-- at the mansion was until his retirement in 2005, England and
:01:27. > :01:28.
:01:28. > :01:35.Wales's most senior judge. Lord Woolf, welcome to HARDtalk. Thank
:01:35. > :01:43.you. They are speaking on the eve of the publication of a report by a
:01:43. > :01:47.very senior judge into not just what went wrong with the press over
:01:47. > :01:55.the phone hacking scandal but also her for the Government should
:01:55. > :01:59.legislate, if at all, to control the press. When you see a fellow
:01:59. > :02:05.judge being involved in such a contentious issue, are you pleased
:02:05. > :02:09.and proud that a member of the judiciary is taking this on or are
:02:09. > :02:17.you concerned that they're going into potentially, in terms of
:02:17. > :02:24.policy making, some very dangerous waters? I have concerns but I see
:02:24. > :02:33.it, today, as part of the duty of being a senior judge. I think it
:02:33. > :02:40.indicates the status the judiciary have been the public's mind that
:02:40. > :02:44.they will come a judge being given the job of chairing an inquiry of
:02:44. > :02:50.the sort that Lord Justice Leveson is investigating. Judges are good
:02:50. > :02:59.at discerning fats, that is their job. They are less expert at making
:02:59. > :03:03.policy decisions. Yes. And, in the end, policy is not a matter for the
:03:03. > :03:07.George. You can make recommendations but the very fact
:03:07. > :03:13.that they are recommendations means that somebody else can decide
:03:13. > :03:21.whether they should be accepted or rejected or modified or whatever
:03:21. > :03:25.view the take-off them. Once the judge has made his report, his
:03:25. > :03:29.concern normally comes to an end. The trouble is for the judiciary
:03:29. > :03:33.more broadly is that if the recommendations are ignored or
:03:33. > :03:40.repudiated, it could be seen to undermine the position of the
:03:40. > :03:45.judiciary. I have conducted a number of inquiries. I never
:03:45. > :03:52.thought quite in that way. I called by recommendations would be
:03:53. > :03:57.accepted. I thought they were the things that should be done. I did
:03:57. > :04:02.realise that that was not part of the exercise where my decision the
:04:02. > :04:07.B final. I try to choose recommendations which affected my
:04:07. > :04:13.own views but also would be acceptable to those who had invited
:04:13. > :04:21.me to make the report. The trouble for Lord Justice Leveson is that
:04:21. > :04:26.because it is such a contentious issue, he is being drawn into the
:04:26. > :04:33.debate in a way that I would think a lot of judges would not like. He
:04:33. > :04:38.has been lampooned by a senior Cabinet minister, Michael Gove. He
:04:38. > :04:43.said that he should be given an award for his commitment to truth
:04:43. > :04:49.telling for his wonderful command, this is Lord Justice Leveson's
:04:49. > :04:55.comments, "I don't need any lessons in freedom of speech, Mr Gove, nor
:04:55. > :05:01.why don't." That was during the inquiry. If you are seeing judges
:05:01. > :05:05.been attacked in those terms, it could be potentially dangerous.
:05:05. > :05:11.think it is undesirable that judges are attacked. They cannot answer
:05:11. > :05:20.back normally. It is interesting that during the course of the
:05:21. > :05:25.inquiry that Lord Justice Leveson has been talked to in those terms.
:05:25. > :05:31.At least he did initiate and was in control of the discussion. Quite
:05:31. > :05:38.frankly, if you're a judge with the experience that Lord Justice
:05:38. > :05:44.Leveson has, his skin has been hardened because you're doing
:05:44. > :05:51.justice in public all the time. That is what he meant by his remark
:05:52. > :05:55.about freedom of speech. We know that if are just as close wrong --
:05:56. > :06:00.that our justice goes wrong when is not conducted in public. That is
:06:00. > :06:04.why we are very reluctant to do anything other than old record.
:06:04. > :06:09.want to talk to you about one of the very contentious issues about
:06:09. > :06:15.how far justice should be openly do. In terms of this general principle
:06:15. > :06:20.be seemed to be established that when there is some scandal, some
:06:20. > :06:27.extremely thorny issue that governments have to grasp, quite
:06:27. > :06:31.often what they would do these days is to reach for a judge LED inquiry.
:06:31. > :06:35.Is that automatically a good thing we do you think sometimes it can be
:06:35. > :06:38.because governments don't want to take the tough decisions?
:06:38. > :06:48.I think sometimes governments aren't always in the best position
:06:48. > :06:55.to judge whether it is suitable for a judge inquiry. When we had the
:06:55. > :06:58.recent constitution and changes in 2005, others are chink, as the
:06:58. > :07:03.constitutional Reform Act went through Parliament, that the
:07:03. > :07:08.Government should not have the final say and the Chief Justice of
:07:08. > :07:12.the day should be there as a sort of long-stop to say that perhaps
:07:12. > :07:16.this is not something that is suitable for a judge. The
:07:16. > :07:21.Government was adamant that that wasn't the best course and
:07:21. > :07:28.Parliament left the final say in the hands of the government and, of
:07:28. > :07:33.course, the judges used to obeying the law. What sort of things to you
:07:33. > :07:40.think are inappropriate for a judge LED inquiry? First of all, what I
:07:40. > :07:44.do believe, it has got to be something which has some aspects
:07:44. > :07:51.but the public's concern is so great that it warrants using a
:07:51. > :07:58.judge. We've got a very high quality judiciary, I think. I think
:07:58. > :08:03.most people share that view. They are very small in number. An
:08:03. > :08:10.inquiry is an extra job. I think, therefore, they should only be used
:08:10. > :08:15.contribution. I think if it's a highly controversial issue then
:08:16. > :08:21.judges have got to be prepared to take it on. Normally, if the
:08:21. > :08:24.Government wanted to take it on, you accept that. It's also a bit of
:08:24. > :08:30.an indictment about the other avenues of inquiry that are open.
:08:30. > :08:34.If you think about parliamentary committees of inquiry, if you watch
:08:34. > :08:42.a select committee of MPs going about their business, is
:08:42. > :08:46.grandstanding, its scattergun, it's not forensic. Isolde the place.
:08:46. > :08:52.It's in marked contrast to many judge inquiries. Don't you think
:08:52. > :08:57.that is part of the problems as well -- problem as well? There are
:08:57. > :09:02.not other avenues? It is very different worlds come up with a
:09:02. > :09:06.judge comes from and where a politician comes from. Our judges
:09:06. > :09:11.used to be investigating in public and then making a re
:09:11. > :09:17.an ordinary course of events, and be called a report, due be called a
:09:17. > :09:22.judgment. It sets out his view of the facts. If that's part of the
:09:22. > :09:27.exercise, that points to using the skills of the judge has acquired
:09:27. > :09:35.over many years for that purpose. There are others with the same
:09:35. > :09:40.skills. Of them we have inquiries by a QC. A lawyer. There has been
:09:40. > :09:44.concern from the Government, you say that they are keen to use
:09:44. > :09:48.judges when it is appropriate for public inquiries, there has been
:09:48. > :09:51.concern from the Government, boys by the Prime Minister and the last
:09:52. > :09:58.few days, that there is a proliferation of judicial review in
:09:58. > :10:02.a way that things run down from public inquiries. There are
:10:02. > :10:06.thousands of judicial reviews now whereas once they are used to be
:10:06. > :10:11.just a handful. That was only a few decades ago. How sympathetic are
:10:11. > :10:15.you to the idea that judges are getting in the way a bit too much
:10:15. > :10:24.of the normal process of doing business? Governmental business?
:10:24. > :10:29.Yes. I think it's very important that there should be the ability
:10:29. > :10:33.for the final course, if you think that there is a situation where the
:10:33. > :10:40.judges going to have to rule on the legality what the Government is
:10:41. > :10:46.proposing to do that you have access to a court. Judicial review
:10:46. > :10:51.was designed, I put a bit of a part in the initial days, to try and
:10:51. > :10:56.protect the Government so the Government could carry on its
:10:56. > :11:01.business pitches to govern the country. At the same time, there
:11:01. > :11:07.could be scrutiny what the judges are doing in those cases where it
:11:07. > :11:10.is appropriate. The number has grown exponentially in recent
:11:10. > :11:15.decades to the point where ministers, with David Cameron at
:11:15. > :11:23.the helm, have said it is stopping government from doing business.
:11:23. > :11:29.have concerns as to whether that is right. What life here is that,
:11:29. > :11:34.unfortunately, because that particular situation, with regard
:11:34. > :11:39.to all forms of immigration, that was being used regularly to deal
:11:39. > :11:48.with the situation of an individual immigrant who wanted to come to
:11:49. > :11:54.this country and who has said he is: Because he mood asylum and
:11:54. > :12:01.accord Scott pulled under this -- and who has said he is coming
:12:01. > :12:06.because he needed asylum. The chords have said to this... My view
:12:06. > :12:14.is that there are areas where there is going to be that sort of build-
:12:15. > :12:21.up of work and then it is very much better that the code to a
:12:21. > :12:27.specialist tribunal. That is what is happening. -- that they go to.
:12:27. > :12:35.Judicial review is the last resort. If there is another way of getting
:12:35. > :12:39.the matter resolved, then the person who wants to take on the
:12:39. > :12:43.Government should use that channel. -- resolve satisfactorily. We've
:12:43. > :12:49.talked about the way in which British organises itself internally,
:12:49. > :12:56.anyway. It also has tremendous international obligations. One of
:12:56. > :13:00.the issues it is causing particular reaction at the moment is whether a
:13:00. > :13:04.prisoner should be given the right to vote. That is something that the
:13:04. > :13:07.European Court on Human Rights says that Britain has to do. It does not
:13:07. > :13:12.currently, unlike most European countries. The Prime Minister has
:13:12. > :13:17.said that the prospect of giving prisoners what makes him physically
:13:17. > :13:22.sick. What do you think about the issue?
:13:22. > :13:25.Another very experienced Queen's Counsel who was a member of the
:13:26. > :13:31.House of Lords said that he found the Prime Minister's reaction to
:13:31. > :13:36.that particular problem made him sick. I don't believe in quite
:13:36. > :13:40.those stark terms but I understand the position of both. If you are
:13:40. > :13:48.Prime Minister, it is very frustrating that the cords should
:13:48. > :13:53.be able to say stop. The European cause? The European cause and our
:13:53. > :13:59.courts. What the European courts say has a direct impact on our
:13:59. > :14:05.courts. It are chords in what is being done is not in accord with
:14:05. > :14:11.what the law requires, they will also ask him to stop. Forgive me
:14:11. > :14:15.interrupting, you cannot pick and choose. If you are as at the tree
:14:15. > :14:21.on Human Rights, you have to abide by that. -- If you are a signatory.
:14:21. > :14:28.You can choose which bits you agree with. It goes further than that.
:14:28. > :14:37.Parliament itself has said that the European Convention of ride, which
:14:37. > :14:45.is part of domestic law, we have to pay regard to what has been decided
:14:45. > :14:49.by the Libyan court. It is influenced by Parliament. Do you
:14:49. > :14:53.agree with the judgment of the outgoing president of the European
:14:53. > :14:58.Court of Human Rights when he said it is seen as damaging that a
:14:58. > :15:01.country as important as the United Kingdom has not complied with a
:15:01. > :15:11.court judgment, in this case the judgment over pretty as having the
:15:11. > :15:16.
:15:16. > :15:24.right to vote? -- prisoners having For the counter argument which has
:15:24. > :15:29.come from British ministers and indeed a senior former British law
:15:29. > :15:35.lord is that what we do have to comply, Britain has to comply with
:15:35. > :15:45.the human rights, parliamentary sovereignty tree supersedes it
:15:45. > :15:46.
:15:46. > :15:52.those route -- supersedes those rules. I do not think he is
:15:53. > :15:59.necessary -- necessarily right. It is complicated by the presence of
:15:59. > :16:02.obligations in respect to the European Convention and above all
:16:02. > :16:08.the European Human Rights Act which brought the European Convention
:16:08. > :16:13.into a domestic law. Before that, it was only part of the
:16:13. > :16:17.international law. What I am really concerned about is this - we are
:16:17. > :16:22.held up by many in Parliament and elsewhere as the country that
:16:22. > :16:29.really is committed to the rule of law. That is something of which I
:16:29. > :16:37.am very proud as a citizen as this country and particularly as a judge.
:16:37. > :16:42.I am afraid that if we do not seem to be observing that the rule of
:16:42. > :16:49.law that sense an appalling message around the globe. Let me ask you
:16:49. > :16:54.about another message that some people are saying is being sent
:16:54. > :16:58.around by the legal reform that is being talked about in the House of
:16:58. > :17:02.Lords been in the upper chamber of parliament and that is the secret
:17:02. > :17:08.courts - the issue of when the government is trying to defend
:17:08. > :17:13.itself in civil courts against damages from a plaintive for
:17:13. > :17:18.example the UK secret services being complicit in torture, that
:17:18. > :17:23.they disclose evidence to a judge but not to the plaintiff, the other
:17:23. > :17:29.side, they withhold evidence from a public hearing. There are plenty of
:17:29. > :17:34.people who say this goes against a fundamental tenant of justice and
:17:35. > :17:39.has to be seen to be open. Where do you stand? I understand the
:17:39. > :17:45.position of those who say that but in my view, they have not got the
:17:45. > :17:52.balance and quite right in putting it into the stark terms that they
:17:52. > :17:57.do. The first responsibility of the court is to do justice, the second
:17:57. > :18:04.responsibility is to do it in a way which does not damage the concept
:18:04. > :18:12.of justice itself. Now, a government's first responsibility
:18:12. > :18:20.is to defend its citizens. If it comes to the conclusion that to do
:18:20. > :18:25.something in a different way from normal will protect its ability to
:18:25. > :18:29.look after the interests of its citizens, then it has a
:18:29. > :18:35.responsibility, it seems to me, to try and put before Parliament a
:18:35. > :18:41.method of doing that and on this particular issue, I cannot think
:18:41. > :18:45.the government got it exactly right, but personally, and I emphasise
:18:45. > :18:51.this is an matter where by different people can take different
:18:51. > :18:58.views, but I have long experience in this area because of what I did
:18:58. > :19:05.in practice as a barrister and what I have done as a charge, and I know
:19:05. > :19:10.that here there is in my view room to do things in a particular way
:19:10. > :19:16.where it is essential to do so in order to protect the government's
:19:16. > :19:22.ability to protect its citizens and at the same time to protect the
:19:22. > :19:25.interest of the litigants who are before it. Forgive me, it is not
:19:25. > :19:30.about national security. These are cases about national embarrassment
:19:30. > :19:35.about whether people are saying the security services, in this case,
:19:35. > :19:40.are complicit in torture. It is trying to stop the government
:19:40. > :19:45.paying out millions of pounds to litigants. It is not a matter of
:19:45. > :19:53.security in those circumstances. I'm sorry, it is about it. What is
:19:53. > :19:57.at issue here is protecting the ability of the government to
:19:57. > :20:03.safeguard its citizens from danger. That is what it is about. It does
:20:03. > :20:07.not mean the case has to be about that. The position is this, certain
:20:07. > :20:14.information is available to the government from particular sources.
:20:15. > :20:17.We have always recognised in law, for hundreds of years, nor has
:20:17. > :20:22.recognised that there are situations where you have to
:20:22. > :20:26.protect the identity, for example of a witness in civil proceedings.
:20:26. > :20:32.Sometimes you go to great lengths to protect them because the
:20:32. > :20:40.witnesses were not give evidence if they were not protected... Weight
:20:40. > :20:45.one moment... You adopt a procedure which tries as far as possible to
:20:46. > :20:49.safeguard both interest. In the cases we are talking about,
:20:50. > :20:57.legislation going through Parliament, actually going through
:20:57. > :21:03.Parliament today, the issue will be what do you do to an able this to
:21:03. > :21:08.be done. What I say is, the case for the government is one which
:21:08. > :21:13.deserves to be respected but the judge has to play a critical part
:21:13. > :21:19.in holding the balance between the interest of the citizen to know
:21:19. > :21:25.what is happening in court and that justice should be seen in public,
:21:25. > :21:31.and the interest of protecting the government's ability for security.
:21:31. > :21:39.Around the world this could be seen as British justice not being done
:21:39. > :21:43.in public - that is the danger. this area, what I say is that it is
:21:43. > :21:51.important to leak the judge in charge. The judge should have a
:21:51. > :21:58.discretion. A discretion to try and square the circle by confining to
:21:58. > :22:02.the minimum the departure from our normal standards. We have been
:22:02. > :22:07.doing this in our courts in different ways in a long time. Just
:22:07. > :22:12.a moment. We have got there with regards to civil proceedings which
:22:12. > :22:18.are different criminal proceedings, to the ridiculous situation that it
:22:18. > :22:24.has been sent if there is evidence of this sort I have indicated, it
:22:24. > :22:29.should not be given at all. That could be a prices traditionally
:22:29. > :22:33.adopted. If I may because time is pressing, let me ask you briefly,
:22:33. > :22:40.we have talked about British position when it comes to law and
:22:40. > :22:48.its export of law. You are taking a leading part trying to set up a
:22:48. > :22:53.commercial court in Katter, how far do you think that could be a
:22:53. > :22:56.springboard to perhaps a new standard of practising law not just
:22:56. > :23:02.in that cou in that couacross the Middle East where the rule of law
:23:02. > :23:09.does not mean what it means for example here. I hope the court will
:23:09. > :23:12.be an example. I hope it will be seen and how important it is to
:23:12. > :23:17.have a court where at least it is accepted that all the judges who
:23:17. > :23:22.were there, are Independent, and furthermore, not only Independent,
:23:23. > :23:32.they are skilled in deciding the sort of cases this court will here.
:23:33. > :23:34.
:23:34. > :23:39.The fact that the Emir and the Prime Minister asked me to do these
:23:39. > :23:43.was in my view a vote of confidence in the British justice system and
:23:44. > :23:48.shows the respect that we have been held in. We need to get that
:23:48. > :23:54.absolutely right. Do you think there is a chance that when we're
:23:54. > :24:00.talking about legal standards out there in the Middle East that when
:24:00. > :24:05.it comes to Britain and what we have talked about - secret courts,
:24:05. > :24:12.a prisoner of voting, judicial inquiries - there is a danger that