0:00:01 > 0:00:04Now it's time for HARDtalk.
0:00:10 > 0:00:16Welcome to HARDtalk. Iron Stephen Sackur. Written prides itself on its
0:00:16 > 0:00:22system of justice. Centuries of common law are proudly independent
0:00:22 > 0:00:27judiciary and a reputation with dumb at full fair dealing which has made
0:00:27 > 0:00:32it an International Centre for dispute arbitration. At our cracks
0:00:32 > 0:00:37starting to show in a system steeped in tradition? I guessed today, Lord
0:00:37 > 0:00:42Neuberger, was until a ship present of the UK Supreme Court, does the
0:00:42 > 0:01:07British judicial system and 21st century reboot? -- need.
0:01:12 > 0:01:19Lord Neuberger, welcome to HARDtalk. Thank you.You are now retired from
0:01:19 > 0:01:23the Supreme Court, I dare say that makes it easier for you to speak in
0:01:23 > 0:01:29public. Do you think it is a problem that judges in the UK are seen as
0:01:29 > 0:01:36quite distant from the public they serve?I think, I can see many
0:01:36 > 0:01:43things about. -- say. To an extent you have to be remote because judges
0:01:43 > 0:01:48are meant to be impartial both in court and out of court. On the other
0:01:48 > 0:01:53hand, people expect judges to be able to be in touch, to understand
0:01:53 > 0:01:57life because they have to decide cases, decide who is telling the
0:01:57 > 0:02:01truth, decide what is the most likely thing to have happened in
0:02:01 > 0:02:05cases involving disputes of fact and they have to develop the law in a
0:02:05 > 0:02:10way which is consistent with the way society is going.In, over the
0:02:10 > 0:02:14course of your long career which took you from one of the U.K.'s
0:02:14 > 0:02:18private schools, to Oxbridge and very quickly into the law and very
0:02:18 > 0:02:23senior positions in the law. Do you, in all honesty that you look back,
0:02:23 > 0:02:28acquired the knowledge of the experience of the country to make
0:02:28 > 0:02:33you a very successful arbiter of these hugely important matters?
0:02:33 > 0:02:38Nobody can claim to be perfect and I would be the last person to claim
0:02:38 > 0:02:43that I am perfect. Yes, you are right. We are all coloured by our
0:02:43 > 0:02:47background, influenced by our background and more confident about
0:02:47 > 0:02:51the world we know. But I think first aid for any judge or anybody doing
0:02:51 > 0:02:56work that involves understanding society generally is to be aware of
0:02:56 > 0:03:02your limitations and do you your best group visiting institutions and
0:03:02 > 0:03:06schools and universities and places of work, to get to understand other
0:03:06 > 0:03:09parts of society that they be you might not have had the experience
0:03:09 > 0:03:13of.You can reach out to them that but also allow them a much great
0:03:13 > 0:03:18insight into what you do and it has to be said, I took about the
0:03:18 > 0:03:20tradition of the British justice system and its reputation reaching
0:03:20 > 0:03:25around the world. But it is quite a secretive and closed institutional
0:03:25 > 0:03:31unlike. Is that something that needs to be a breast?-- framework. It is
0:03:31 > 0:03:36something that needs to be addressed and selling that is being addressed.
0:03:36 > 0:03:42-- addressed. If you go back 50 years, the judges were almost like a
0:03:42 > 0:03:47priesthood almost shouted away from society. Now, thanks possibly to the
0:03:47 > 0:03:54change of attitude, the reduction of the respect of gender, the increase
0:03:54 > 0:03:59of means of communication, judges see themselves as expected to speak
0:03:59 > 0:04:03out and explain to people what they do and why they do it.As a very
0:04:03 > 0:04:08influential voice within the criminal justice system, what is
0:04:08 > 0:04:11your opinion today on a topical issue addressing the different
0:04:11 > 0:04:19branch of a justice system, the parole board. It is under huge fire
0:04:19 > 0:04:23in particular regarding a man who was convicted of terrible sexual
0:04:23 > 0:04:26violence, including rapes, which brought him an indeterminate
0:04:26 > 0:04:30sentence which was to be a minimum of eight years. It turns out the
0:04:30 > 0:04:33parole board, after the deliberation, decided that he should
0:04:33 > 0:04:38be eligible for parole after not much more than eight years. The
0:04:38 > 0:04:42press is furious, MPs say it is unacceptable but the parole board
0:04:42 > 0:04:46will not open up the deliberations that led to that decision. Is that
0:04:46 > 0:04:55day and age the wrong attitude?What has happened in John Warboys case
0:04:55 > 0:05:00has happened in accordance with the law laid down by Parliament and the
0:05:00 > 0:05:03parole board has acted in accordance with its duties. As far as I know.
0:05:03 > 0:05:10Whether the law should be changed to make the parole board more
0:05:10 > 0:05:13accessible to the public is a matter which should obviously be
0:05:13 > 0:05:17considered, but for me to express a clear view about it on the basis of
0:05:17 > 0:05:20one case would be just the sort of knee-jerk reaction which is very
0:05:20 > 0:05:26dangerous.I am got to try and tease out a principle, he seemed to be
0:05:26 > 0:05:29saying when it came to your court, the Supreme Court, that you did
0:05:29 > 0:05:34leave public trust had to be built on greater transparency, is that a
0:05:34 > 0:05:37principle that should now be applied to the parole board?I think it
0:05:37 > 0:05:40certainly should be considered, I cannot pretend to be an expert on
0:05:40 > 0:05:45the parole board. Obviously there is an argument and to my mind anything
0:05:45 > 0:05:49concerned with the justice system and it would include the parole
0:05:49 > 0:05:52board, one would start with the proposition that it should be as
0:05:52 > 0:05:56open as possible. In the case of the parole board, there may be reasons,
0:05:56 > 0:06:05I am not expert enough to say, for having a relatively open process.
0:06:05 > 0:06:10What about an open and transparent process, or who is ultimately making
0:06:10 > 0:06:16their decisions, how did you get capped up? In the US it is
0:06:16 > 0:06:18straightforward, the president nominates the Congress, looks into
0:06:18 > 0:06:23the nomination and decides whether to accept or reject. It is not clear
0:06:23 > 0:06:27in this country at all.I don't entirely agree. It is not as open as
0:06:27 > 0:06:32the United States but in the way, for instance, a member of the
0:06:32 > 0:06:38Supreme Court or the resident is chosen is laid down as such, the
0:06:38 > 0:06:44constitutional form 2005. A panel is set up by the Lord Chancellor...The
0:06:44 > 0:06:48public gets no sight of this whatsoever. The point about the
0:06:48 > 0:06:52congressional hearings for Anomalisa the Supreme Court of the US is that
0:06:52 > 0:06:57the public is invited in. There is an intense focus not just only on
0:06:57 > 0:06:59their judicial record but the quality of the character involved
0:06:59 > 0:07:04and are not that can happen in the UK.It cannot, but what other jobs,
0:07:04 > 0:07:10senior civil servants are not chosen in the public sphere. I could see
0:07:10 > 0:07:13that they could be an argument for more public involvement, more
0:07:13 > 0:07:22publicity. But when you look at the Circus in what often occurs in
0:07:22 > 0:07:26relation to American judges, I would not want that to happen here.It is
0:07:26 > 0:07:32more honest though. You and a blank slate, bring your own value system,
0:07:32 > 0:07:37your culture and experience and I dare say your own politics too. In a
0:07:37 > 0:07:40way, the American system, which makes it quite plain what political
0:07:40 > 0:07:47perspective are candid brings -- the candidate brings, that is more
0:07:47 > 0:07:51honest.There is a difference between honesty and openness. I do
0:07:51 > 0:07:56think it is particularly honest. When politicians get involved in the
0:07:56 > 0:07:58selection of judges they don't necessarily choose according to
0:07:58 > 0:08:03their judicial and legal abilities, based choose a hoarding to their
0:08:03 > 0:08:09logical convictions and how much they can trust them to vote in
0:08:09 > 0:08:12favour of legal cases that are particularly sensitive. In this
0:08:12 > 0:08:19case, of course many judges will have political views but actually,
0:08:19 > 0:08:22although we would be superhuman if they were totally relevant, we are
0:08:22 > 0:08:26actually very, very literally influenced by our party political
0:08:26 > 0:08:31views.We might come back to that. Briefly a view statistics that
0:08:31 > 0:08:36seemed important. Project is that of judges are female in the UK, 20% of
0:08:36 > 0:08:43those are from the black, Asian and ethnic mind, a minority in this
0:08:43 > 0:08:46country. In your own court, the Supreme Court, three quarters of
0:08:46 > 0:08:50them went to private school, 7% of the overall population go to private
0:08:50 > 0:08:55school. Three quarters of them went to Oxbridge and only two of them out
0:08:55 > 0:09:00of 12 are women. These are all damning statistics.You can call
0:09:00 > 0:09:05them damning if you like, they are not good, I agree. You have to break
0:09:05 > 0:09:09it down a bit more carefully than that. Senior judges are almost
0:09:09 > 0:09:16exclusively chosen from the bar, from barristers. If you look at the
0:09:16 > 0:09:21QC ease, 13% are women. Said the 20% figure you give, the 20% of the High
0:09:21 > 0:09:25Court of women in that actually steps are being taken and have been
0:09:25 > 0:09:29taken successfully without reducing the quality.You have been very
0:09:29 > 0:09:34careful to tell me that judges need to keep there, to put it crudely,
0:09:34 > 0:09:39their noses out of politics. But if you as a judge saw that the criminal
0:09:39 > 0:09:43justice system in the UK or in England and Wales, when you are a
0:09:43 > 0:09:49High Court judge, if you saw that the system was creaky or indeed
0:09:49 > 0:09:53breaking down, would it not be your duty to speak out even if it had
0:09:53 > 0:09:58major political ramifications? Yes. Have you done that, because there
0:09:58 > 0:10:02are many people inside the system who believe, a direct quote from MPs
0:10:02 > 0:10:06who have looked at the system very closely over the last year or two,
0:10:06 > 0:10:11that the system is at breaking point.Well, the truth is, when it
0:10:11 > 0:10:17comes to the system of justice in England and Wales, that is primarily
0:10:17 > 0:10:21the job of the Supreme Court Justice.But giving your record is
0:10:21 > 0:10:27as a very senior judge in England and then going on to the Supreme
0:10:27 > 0:10:31Court, your voice matters.Yes it does and I have often said that we
0:10:31 > 0:10:35are getting to a breaking point, a point where legal aid is a problem
0:10:35 > 0:10:39because it is insufficiently available, where the system needs
0:10:39 > 0:10:43money spent on it badly in terms of court buildings and in terms of IT.
0:10:43 > 0:10:48But as I say, I am not shirking this, it is the Lord Chief Justice
0:10:48 > 0:10:53's job to deal with that.I need to follow this through. There is no
0:10:53 > 0:10:56question that justice system, the Ministry of Justice has borne the
0:10:56 > 0:11:00brunt of an awful what of the cuts compared with health and education
0:11:00 > 0:11:05and other department. Justice has had to take much more of the pain.
0:11:05 > 0:11:10That is quite true. You think it has gone too far?Yes, and to be fair
0:11:10 > 0:11:15the government has sinned and while events such as Brexit and the
0:11:15 > 0:11:21election has stood in the way, there are proposals, strongly supported by
0:11:21 > 0:11:26the Ministry of Justice and I believe supported by the Treasury to
0:11:26 > 0:11:30spend substantial amounts of money on the court system.One point on
0:11:30 > 0:11:33prison conditions, nobody doubts that prisons are overcrowded,
0:11:33 > 0:11:36creaking under the strain and conditions in some of them are
0:11:36 > 0:11:41absolutely appalling. One statistics. Sentences have risen, on
0:11:41 > 0:11:47average, by a third over the past 30 years if you compare conviction for
0:11:47 > 0:11:51conviction over a 30 year period in the jail population has grown by
0:11:51 > 0:11:5782%. Have judges been influenced by politicians who feel they have to be
0:11:57 > 0:12:03seen to get tougher on crime and criminals?There is something called
0:12:03 > 0:12:06a sentencing council, which involves judges and politicians, which gives
0:12:06 > 0:12:12guidelines on what said as are appropriate. A judge when sentencing
0:12:12 > 0:12:16is completely free to say the maximum sentence is 14 years... I
0:12:16 > 0:12:20understand that. They are bound by the sentencing which it ensures a
0:12:20 > 0:12:26degree of sentencing. -- consistency. But you are right,
0:12:26 > 0:12:30there has been an uptick in sentences which has been part of the
0:12:30 > 0:12:34public demand.Is that healthy or unhealthy for society? That
0:12:34 > 0:12:40sentences have risen by a third over 30 years?That is a matter of
0:12:40 > 0:12:44opinion.I want your opinion, that is why you are here.That is fair
0:12:44 > 0:12:48enough, there are some things that a judge cannot express views on, as a
0:12:48 > 0:12:54retired judge I can say that I am dubious about the value of much
0:12:54 > 0:12:57longer sentences in many cases. There are some people who are
0:12:57 > 0:13:02dangers to society and you wonder at times why you worry how long they
0:13:02 > 0:13:07should spend there. But there are a lot of people who, to my mind, spend
0:13:07 > 0:13:14an unquestionably longtime.Is that because politicians insist on this
0:13:14 > 0:13:18very public stand of being tough on criminals? And is that actually
0:13:18 > 0:13:23deleterious to doing the right thing?I think you are getting off
0:13:23 > 0:13:27the right point here because the statutes set by talent to set out
0:13:27 > 0:13:32maximum and sometimes minimum. The democratic process, politicians, to
0:13:32 > 0:13:38get involved in the sentencing process.In a damaging way?That
0:13:38 > 0:13:43depends in your view, I am would not like to generalise, I think there
0:13:43 > 0:13:46are some aspects of sentencing which are good and others which I
0:13:46 > 0:13:50personally, although as a judge I would carry out, personally I think
0:13:50 > 0:13:55are a bit harsh. Politicians have to have a say because they are
0:13:55 > 0:13:58democratic. They are involved in setting the basic rules, judges and
0:13:58 > 0:14:04decide within those rules what the right sentence is.This talk about
0:14:04 > 0:14:07one specific interface between politics and the law, when you were
0:14:07 > 0:14:11president of the Supreme Court. That is your decision that had to be made
0:14:11 > 0:14:17on whether or not the UK government had to get the consent of Parliament
0:14:17 > 0:14:21before triggering Article 50. You considered all of the evidence and
0:14:21 > 0:14:25you decided that yes, the government did have to go to Parliament rather
0:14:25 > 0:14:32than just wait executive order. Issue Article 50. Here is what one
0:14:32 > 0:14:39senior Tory MP, a influential voice in the progress it had said
0:14:39 > 0:14:45afterwards. He talked of an unholy alliance of diehard remain
0:14:45 > 0:14:50campaigners, a fund manager who funded the case and an unelected
0:14:50 > 0:14:54judiciary, he said this must not be allowed, this alliance to thwart the
0:14:54 > 0:14:58wishes of the British public. How alarmed were you buy that sort of
0:14:58 > 0:15:01reaction?
0:15:01 > 0:15:08To eke out I felt that the general mood was feverish.And that should
0:15:08 > 0:15:17have been better. They do look pretty extreme, these people.Who
0:15:17 > 0:15:23are you referring to?I think he set that you read is one such statement.
0:15:23 > 0:15:28How about the leader of the Conservative Party, a very senior
0:15:28 > 0:15:33figure in the party, Iain Duncan Smith, who asked this, rhetorically:
0:15:33 > 0:15:40To unelected judges about whom the public knows almost nothing have the
0:15:40 > 0:15:43right to assume the powers of the elected members of Parliament, and
0:15:43 > 0:15:46through them, the government? I believe it becomes imperative that
0:15:46 > 0:15:52we know more about them, that is, those placed in such positions of
0:15:52 > 0:15:57power. There was an implicit threat, there.I think that is a laughable
0:15:57 > 0:16:00statement, because he talks about 40 the democratic elected
0:16:00 > 0:16:13representatives. -- porting. -- thwarting. That was an egregious
0:16:13 > 0:16:18statement.You don't think much of the calibre of the politicians you
0:16:18 > 0:16:22have dealt with?I do think one lot of many of them will stop where have
0:16:22 > 0:16:26all said things that are not very wise in the heat of the moment. The
0:16:26 > 0:16:30fact that somebody says something otherwise and positively full list
0:16:30 > 0:16:34not mean that he or she is normally a foolish person. But that was a
0:16:34 > 0:16:38foolish thing to say.If we are talking about foolishness and also
0:16:38 > 0:16:42the look of this, and the trusty public and have in the impartiality
0:16:42 > 0:16:47of the system, was a wise that one of your colleagues appear to say
0:16:47 > 0:16:52things in colleague that made it it clear she was convinced remain an,
0:16:52 > 0:16:57and, to be personal, it was mentored by several Brexiteers that your own
0:16:57 > 0:17:01wife had tweeted publicly, making clear that she pro-Brexit was bad
0:17:01 > 0:17:05and mad. You are, as a top judge, are not supposed to express
0:17:05 > 0:17:09opinions, but your close family is not supposed to express opinions,
0:17:09 > 0:17:18either.I don't think that is right. And as for lady Hale, what she said
0:17:18 > 0:17:23was innocuous in the extreme. My wife has her views and I have mine.
0:17:23 > 0:17:29I don't know what is more in salting, that she should have my
0:17:29 > 0:17:34views and I should have hers.Did you vote in a referendum?Yes. I
0:17:34 > 0:17:41did.So you obviously have personal views. How easy is it too parts of
0:17:41 > 0:17:45the door when you deliberate on such important matter?It is very easy
0:17:45 > 0:17:50indeed. I no difficulty with political views. Where it is more
0:17:50 > 0:17:59difficult, sometimes, is on issues, to take in this example, when you
0:17:59 > 0:18:02think it has behaved badly, but the law appears to be their side, and
0:18:02 > 0:18:07the person has been victimised unfairly, and the law appears
0:18:07 > 0:18:13against them. That is when you need to be careful. Both to apply the law
0:18:13 > 0:18:17even if it means unsatisfactory would result, and also to make sure
0:18:17 > 0:18:21that you are not linear backwards to adjust the law, if you properly can,
0:18:21 > 0:18:28to get the right result. As for other types of things, I think if
0:18:28 > 0:18:34you are deciding on a particular decision, and whether it is wrong or
0:18:34 > 0:18:39not, it is very much of a value judgement. And while politics has
0:18:39 > 0:18:44not come into it, balancing up factors which are not easy to
0:18:44 > 0:18:48reconcile, you need to be quite careful that you are as subjective
0:18:48 > 0:18:54as you can be. Nobody's mind is a blank slate.Before we take you into
0:18:54 > 0:18:58very difficult territory, some of the cases that I have looked through
0:18:58 > 0:19:03that have been perhaps most stressful, involving literally
0:19:03 > 0:19:07life-and-death authority that you have vested in your court, and I'm
0:19:07 > 0:19:13thinking, for example, in the case of Tony Nicholson, who we
0:19:13 > 0:19:19interviewed, who suffered terribly because he has this locked in
0:19:19 > 0:19:23syndrome. He had no quality of life and was desperate to die. He did
0:19:23 > 0:19:27only dive he was assisted by Doctor. That appeared to be illegal. The
0:19:27 > 0:19:32court ruled that to be illegal, and it came through to the Supreme Court
0:19:32 > 0:19:37with his appeals. How much of a burden did you feel? It was
0:19:37 > 0:19:44literally his life in the hands of your court.It was an example, a
0:19:44 > 0:19:48strong example, of a very troublesome case. I am unfortunate
0:19:48 > 0:19:54enough to worry about cases are trade decided then, as well as
0:19:54 > 0:20:02before, which is a pointless thing to do. That case was, again,
0:20:02 > 0:20:07Parliament was clear. They had passed a statute saying that anyone
0:20:07 > 0:20:11who assisted anyone else to commit suicide committed a criminal offence
0:20:11 > 0:20:18and was liable to be imprisoned for 14 years. Therefore, at any doctor
0:20:18 > 0:20:21that assisted him in doing what many people thought he will should be
0:20:21 > 0:20:25allowed to do, would be committing a crime. And the question for us was
0:20:25 > 0:20:33whether that law was an unwarranted interference with his dignity, his
0:20:33 > 0:20:42right to determine his own fate.You think the law as it currently stands
0:20:42 > 0:20:49was inadequate for the morality involved in the case?I did have
0:20:49 > 0:20:54personal views and I think most people...You are retired, now. Do
0:20:54 > 0:20:59you think the morally right thing to do would be to give Mr Tony
0:20:59 > 0:21:03Nicklinson the right to commit suicide?I think morally right is
0:21:03 > 0:21:07not... Not in the sense that I thought that people who thought
0:21:07 > 0:21:11differently were morally wrong, but it was up to me to fashion the law,
0:21:11 > 0:21:15I think that I would have fashioned it to enable this to happen. But I
0:21:15 > 0:21:25don't think, and I think it is also true of my colleagues, many of whom
0:21:25 > 0:21:30fully feel the same to me that I would not have decided...You should
0:21:30 > 0:21:35have been very satisfied with the outcome...I think the real question
0:21:35 > 0:21:39and the Tory question was one of allocation of responsibility, which
0:21:39 > 0:21:43is something that we have been catching on, here. It was whether,
0:21:43 > 0:21:48under the human rights convention, it was open to the court to say to
0:21:48 > 0:21:53the Parliament, week of the judges, said the law should be changed, or
0:21:53 > 0:21:57whether we should leave it to Parliament. The human rights course
0:21:57 > 0:22:01in Strasbourg said it was a matter for individual countries. -- human
0:22:01 > 0:22:06rights courts. We had to decide if in our system was appropriate to
0:22:06 > 0:22:10tell the Parliament what to do.I want to end by taking a back, and
0:22:10 > 0:22:14you might not be thrilled about this, but to Brexit. In a
0:22:14 > 0:22:18valedictory speech, he said many people worry that the UK ship of
0:22:18 > 0:22:24state is sailing into choppy waters. Yes I did.You did. And I suspect
0:22:24 > 0:22:29that you had politics and Brexit in your mind. And you have also since
0:22:29 > 0:22:34testified saying that the cover quote, that the legal imitations of
0:22:34 > 0:22:39leaving the EU have not been thought through, and in particular you have
0:22:39 > 0:22:42targeted the relationship between the British courts and the European
0:22:42 > 0:22:48Court of Justice in the future, after Brexit. The British court
0:22:48 > 0:22:51appears to have closer relationship. How concerned are you by the
0:22:51 > 0:22:57confusion here?I think that they are not that concerned about the
0:22:57 > 0:23:01present situation. It is inevitable, given that there are different views
0:23:01 > 0:23:06within Parliament and political parties, and the government is
0:23:06 > 0:23:13negotiating with Europe. They want to show their hand and they will be
0:23:13 > 0:23:18giving and taking negotiations. I am concerned that there will be
0:23:18 > 0:23:27uncertainty.But to be blunt, David Jones, fraud at Brexit Minister said
0:23:27 > 0:23:32it would be unacceptable if the ECJ kept any role in UK affairs in the
0:23:32 > 0:23:39long-term after leaving the EU. -- David Jones, Ballmer.It depends on
0:23:39 > 0:23:43the deal we get. Even the multiplicity of different
0:23:43 > 0:23:48settlements and the possibility of a non- settlement, it is impossible to
0:23:48 > 0:23:52say whether the ECJ will have an involvement, and whether it will be
0:23:52 > 0:24:00long-term. In some solutions and settlements, they will involve
0:24:00 > 0:24:03short-term involvement, and others long. But I'm sorry to be
0:24:03 > 0:24:09equivocating. By not party to the negotiations, so I do not know what
0:24:09 > 0:24:14is likely to be on the table.He said that with a certain sense of
0:24:14 > 0:24:18relief in your boys. Thank you very much were joining us on HARDtalk,
0:24:18 > 0:24:47Lord Neuberger.Thank you very much. Thank you.