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