30/01/2018 HARDtalk

Now it's time for HARDtalk.

Welcome to HARDtalk. Iron Stephen

Sackur. Written prides itself on its

system of justice. Centuries of

common law are proudly independent

judiciary and a reputation with dumb

at full fair dealing which has made

it an International Centre for

dispute arbitration. At our cracks

starting to show in a system steeped

in tradition? I guessed today, Lord

Neuberger, was until a ship present

of the UK Supreme Court, does the

British judicial system and 21st

century reboot? -- need.

Lord Neuberger, welcome to HARDtalk.

Thank you.

You are now retired from

the Supreme Court, I dare say that

makes it easier for you to speak in

public. Do you think it is a problem

that judges in the UK are seen as

quite distant from the public they

serve?

I think, I can see many

things about. -- say. To an extent

you have to be remote because judges

are meant to be impartial both in

court and out of court. On the other

hand, people expect judges to be

able to be in touch, to understand

life because they have to decide

cases, decide who is telling the

truth, decide what is the most

likely thing to have happened in

cases involving disputes of fact and

they have to develop the law in a

way which is consistent with the way

society is going.

In, over the

course of your long career which

took you from one of the U.K.'s

private schools, to Oxbridge and

very quickly into the law and very

senior positions in the law. Do you,

in all honesty that you look back,

acquired the knowledge of the

experience of the country to make

you a very successful arbiter of

these hugely important matters?

Nobody can claim to be perfect and I

would be the last person to claim

that I am perfect. Yes, you are

right. We are all coloured by our

background, influenced by our

background and more confident about

the world we know. But I think first

aid for any judge or anybody doing

work that involves understanding

society generally is to be aware of

your limitations and do you your

best group visiting institutions and

schools and universities and places

of work, to get to understand other

parts of society that they be you

might not have had the experience

of.

You can reach out to them that

but also allow them a much great

insight into what you do and it has

to be said, I took about the

tradition of the British justice

system and its reputation reaching

around the world. But it is quite a

secretive and closed institutional

unlike. Is that something that needs

to be a breast?

-- framework. It is

something that needs to be addressed

and selling that is being addressed.

-- addressed. If you go back 50

years, the judges were almost like a

priesthood almost shouted away from

society. Now, thanks possibly to the

change of attitude, the reduction of

the respect of gender, the increase

of means of communication, judges

see themselves as expected to speak

out and explain to people what they

do and why they do it.

As a very

influential voice within the

criminal justice system, what is

your opinion today on a topical

issue addressing the different

branch of a justice system, the

parole board. It is under huge fire

in particular regarding a man who

was convicted of terrible sexual

violence, including rapes, which

brought him an indeterminate

sentence which was to be a minimum

of eight years. It turns out the

parole board, after the

deliberation, decided that he should

be eligible for parole after not

much more than eight years. The

press is furious, MPs say it is

unacceptable but the parole board

will not open up the deliberations

that led to that decision. Is that

day and age the wrong attitude?

What

has happened in John Warboys case

has happened in accordance with the

law laid down by Parliament and the

parole board has acted in accordance

with its duties. As far as I know.

Whether the law should be changed to

make the parole board more

accessible to the public is a matter

which should obviously be

considered, but for me to express a

clear view about it on the basis of

one case would be just the sort of

knee-jerk reaction which is very

dangerous.

I am got to try and tease

out a principle, he seemed to be

saying when it came to your court,

the Supreme Court, that you did

leave public trust had to be built

on greater transparency, is that a

principle that should now be applied

to the parole board?

I think it

certainly should be considered, I

cannot pretend to be an expert on

the parole board. Obviously there is

an argument and to my mind anything

concerned with the justice system

and it would include the parole

board, one would start with the

proposition that it should be as

open as possible. In the case of the

parole board, there may be reasons,

I am not expert enough to say, for

having a relatively open process.

What about an open and transparent

process, or who is ultimately making

their decisions, how did you get

capped up? In the US it is

straightforward, the president

nominates the Congress, looks into

the nomination and decides whether

to accept or reject. It is not clear

in this country at all.

I don't

entirely agree. It is not as open as

the United States but in the way,

for instance, a member of the

Supreme Court or the resident is

chosen is laid down as such, the

constitutional form 2005. A panel is

set up by the Lord Chancellor...

The

public gets no sight of this

whatsoever. The point about the

congressional hearings for Anomalisa

the Supreme Court of the US is that

the public is invited in. There is

an intense focus not just only on

their judicial record but the

quality of the character involved

and are not that can happen in the

UK.

It cannot, but what other jobs,

senior civil servants are not chosen

in the public sphere. I could see

that they could be an argument for

more public involvement, more

publicity. But when you look at the

Circus in what often occurs in

relation to American judges, I would

not want that to happen here.

It is

more honest though. You and a blank

slate, bring your own value system,

your culture and experience and I

dare say your own politics too. In a

way, the American system, which

makes it quite plain what political

perspective are candid brings -- the

candidate brings, that is more

honest.

There is a difference

between honesty and openness. I do

think it is particularly honest.

When politicians get involved in the

selection of judges they don't

necessarily choose according to

their judicial and legal abilities,

based choose a hoarding to their

logical convictions and how much

they can trust them to vote in

favour of legal cases that are

particularly sensitive. In this

case, of course many judges will

have political views but actually,

although we would be superhuman if

they were totally relevant, we are

actually very, very literally

influenced by our party political

views.

We might come back to that.

Briefly a view statistics that

seemed important. Project is that of

judges are female in the UK, 20% of

those are from the black, Asian and

ethnic mind, a minority in this

country. In your own court, the

Supreme Court, three quarters of

them went to private school, 7% of

the overall population go to private

school. Three quarters of them went

to Oxbridge and only two of them out

of 12 are women. These are all

damning statistics.

You can call

them damning if you like, they are

not good, I agree. You have to break

it down a bit more carefully than

that. Senior judges are almost

exclusively chosen from the bar,

from barristers. If you look at the

QC ease, 13% are women. Said the 20%

figure you give, the 20% of the High

Court of women in that actually

steps are being taken and have been

taken successfully without reducing

the quality.

You have been very

careful to tell me that judges need

to keep there, to put it crudely,

their noses out of politics. But if

you as a judge saw that the criminal

justice system in the UK or in

England and Wales, when you are a

High Court judge, if you saw that

the system was creaky or indeed

breaking down, would it not be your

duty to speak out even if it had

major political ramifications? Yes.

Have you done that, because there

are many people inside the system

who believe, a direct quote from MPs

who have looked at the system very

closely over the last year or two,

that the system is at breaking

point.

Well, the truth is, when it

comes to the system of justice in

England and Wales, that is primarily

the job of the Supreme Court

Justice.

But giving your record is

as a very senior judge in England

and then going on to the Supreme

Court, your voice matters.

Yes it

does and I have often said that we

are getting to a breaking point, a

point where legal aid is a problem

because it is insufficiently

available, where the system needs

money spent on it badly in terms of

court buildings and in terms of IT.

But as I say, I am not shirking

this, it is the Lord Chief Justice

's job to deal with that.

I need to

follow this through. There is no

question that justice system, the

Ministry of Justice has borne the

brunt of an awful what of the cuts

compared with health and education

and other department. Justice has

had to take much more of the pain.

That is quite true. You think it has

gone too far?

Yes, and to be fair

the government has sinned and while

events such as Brexit and the

election has stood in the way, there

are proposals, strongly supported by

the Ministry of Justice and I

believe supported by the Treasury to

spend substantial amounts of money

on the court system.

One point on

prison conditions, nobody doubts

that prisons are overcrowded,

creaking under the strain and

conditions in some of them are

absolutely appalling. One

statistics. Sentences have risen, on

average, by a third over the past 30

years if you compare conviction for

conviction over a 30 year period in

the jail population has grown by

82%. Have judges been influenced by

politicians who feel they have to be

seen to get tougher on crime and

criminals?

There is something called

a sentencing council, which involves

judges and politicians, which gives

guidelines on what said as are

appropriate. A judge when sentencing

is completely free to say the

maximum sentence is 14 years... I

understand that. They are bound by

the sentencing which it ensures a

degree of sentencing. --

consistency. But you are right,

there has been an uptick in

sentences which has been part of the

public demand.

Is that healthy or

unhealthy for society? That

sentences have risen by a third over

30 years?

That is a matter of

opinion.

I want your opinion, that

is why you are here.

That is fair

enough, there are some things that a

judge cannot express views on, as a

retired judge I can say that I am

dubious about the value of much

longer sentences in many cases.

There are some people who are

dangers to society and you wonder at

times why you worry how long they

should spend there. But there are a

lot of people who, to my mind, spend

an unquestionably longtime.

Is that

because politicians insist on this

very public stand of being tough on

criminals? And is that actually

deleterious to doing the right

thing?

I think you are getting off

the right point here because the

statutes set by talent to set out

maximum and sometimes minimum. The

democratic process, politicians, to

get involved in the sentencing

process.

In a damaging way?

That

depends in your view, I am would not

like to generalise, I think there

are some aspects of sentencing which

are good and others which I

personally, although as a judge I

would carry out, personally I think

are a bit harsh. Politicians have to

have a say because they are

democratic. They are involved in

setting the basic rules, judges and

decide within those rules what the

right sentence is.

This talk about

one specific interface between

politics and the law, when you were

president of the Supreme Court. That

is your decision that had to be made

on whether or not the UK government

had to get the consent of Parliament

before triggering Article 50. You

considered all of the evidence and

you decided that yes, the government

did have to go to Parliament rather

than just wait executive order.

Issue Article 50. Here is what one

senior Tory MP, a influential voice

in the progress it had said

afterwards. He talked of an unholy

alliance of diehard remain

campaigners, a fund manager who

funded the case and an unelected

judiciary, he said this must not be

allowed, this alliance to thwart the

wishes of the British public. How

alarmed were you buy that sort of

reaction?

To eke out I felt that the general

mood was feverish.

And that should

have been better. They do look

pretty extreme, these people.

Who

are you referring to?

I think he set

that you read is one such statement.

How about the leader of the

Conservative Party, a very senior

figure in the party, Iain Duncan

Smith, who asked this, rhetorically:

To unelected judges about whom the

public knows almost nothing have the

right to assume the powers of the

elected members of Parliament, and

through them, the government? I

believe it becomes imperative that

we know more about them, that is,

those placed in such positions of

power. There was an implicit threat,

there.

I think that is a laughable

statement, because he talks about 40

the democratic elected

representatives. -- porting. --

thwarting. That was an egregious

statement.

You don't think much of

the calibre of the politicians you

have dealt with?

I do think one lot

of many of them will stop where have

all said things that are not very

wise in the heat of the moment. The

fact that somebody says something

otherwise and positively full list

not mean that he or she is normally

a foolish person. But that was a

foolish thing to say.

If we are

talking about foolishness and also

the look of this, and the trusty

public and have in the impartiality

of the system, was a wise that one

of your colleagues appear to say

things in colleague that made it it

clear she was convinced remain an,

and, to be personal, it was mentored

by several Brexiteers that your own

wife had tweeted publicly, making

clear that she pro-Brexit was bad

and mad. You are, as a top judge,

are not supposed to express

opinions, but your close family is

not supposed to express opinions,

either.

I don't think that is right.

And as for lady Hale, what she said

was innocuous in the extreme. My

wife has her views and I have mine.

I don't know what is more in

salting, that she should have my

views and I should have hers.

Did

you vote in a referendum?

Yes. I

did.

So you obviously have personal

views. How easy is it too parts of

the door when you deliberate on such

important matter?

It is very easy

indeed. I no difficulty with

political views. Where it is more

difficult, sometimes, is on issues,

to take in this example, when you

think it has behaved badly, but the

law appears to be their side, and

the person has been victimised

unfairly, and the law appears

against them. That is when you need

to be careful. Both to apply the law

even if it means unsatisfactory

would result, and also to make sure

that you are not linear backwards to

adjust the law, if you properly can,

to get the right result. As for

other types of things, I think if

you are deciding on a particular

decision, and whether it is wrong or

not, it is very much of a value

judgement. And while politics has

not come into it, balancing up

factors which are not easy to

reconcile, you need to be quite

careful that you are as subjective

as you can be. Nobody's mind is a

blank slate.

Before we take you into

very difficult territory, some of

the cases that I have looked through

that have been perhaps most

stressful, involving literally

life-and-death authority that you

have vested in your court, and I'm

thinking, for example, in the case

of Tony Nicholson, who we

interviewed, who suffered terribly

because he has this locked in

syndrome. He had no quality of life

and was desperate to die. He did

only dive he was assisted by Doctor.

That appeared to be illegal. The

court ruled that to be illegal, and

it came through to the Supreme Court

with his appeals. How much of a

burden did you feel? It was

literally his life in the hands of

your court.

It was an example, a

strong example, of a very

troublesome case. I am unfortunate

enough to worry about cases are

trade decided then, as well as

before, which is a pointless thing

to do. That case was, again,

Parliament was clear. They had

passed a statute saying that anyone

who assisted anyone else to commit

suicide committed a criminal offence

and was liable to be imprisoned for

14 years. Therefore, at any doctor

that assisted him in doing what many

people thought he will should be

allowed to do, would be committing a

crime. And the question for us was

whether that law was an unwarranted

interference with his dignity, his

right to determine his own fate.

You

think the law as it currently stands

was inadequate for the morality

involved in the case?

I did have

personal views and I think most

people...

You are retired, now. Do

you think the morally right thing to

do would be to give Mr Tony

Nicklinson the right to commit

suicide?

I think morally right is

not... Not in the sense that I

thought that people who thought

differently were morally wrong, but

it was up to me to fashion the law,

I think that I would have fashioned

it to enable this to happen. But I

don't think, and I think it is also

true of my colleagues, many of whom

fully feel the same to me that I

would not have decided...

You should

have been very satisfied with the

outcome...

I think the real question

and the Tory question was one of

allocation of responsibility, which

is something that we have been

catching on, here. It was whether,

under the human rights convention,

it was open to the court to say to

the Parliament, week of the judges,

said the law should be changed, or

whether we should leave it to

Parliament. The human rights course

in Strasbourg said it was a matter

for individual countries. -- human

rights courts. We had to decide if

in our system was appropriate to

tell the Parliament what to do.

I

want to end by taking a back, and

you might not be thrilled about

this, but to Brexit. In a

valedictory speech, he said many

people worry that the UK ship of

state is sailing into choppy waters.

Yes I did.

You did. And I suspect

that you had politics and Brexit in

your mind. And you have also since

testified saying that the cover

quote, that the legal imitations of

leaving the EU have not been thought

through, and in particular you have

targeted the relationship between

the British courts and the European

Court of Justice in the future,

after Brexit. The British court

appears to have closer relationship.

How concerned are you by the

confusion here?

I think that they

are not that concerned about the

present situation. It is inevitable,

given that there are different views

within Parliament and political

parties, and the government is

negotiating with Europe. They want

to show their hand and they will be

giving and taking negotiations. I am

concerned that there will be

uncertainty.

But to be blunt, David

Jones, fraud at Brexit Minister said

it would be unacceptable if the ECJ

kept any role in UK affairs in the

long-term after leaving the EU. --

David Jones, Ballmer.

It depends on

the deal we get. Even the

multiplicity of different

settlements and the possibility of a

non- settlement, it is impossible to

say whether the ECJ will have an

involvement, and whether it will be

long-term. In some solutions and

settlements, they will involve

short-term involvement, and others

long. But I'm sorry to be

equivocating. By not party to the

negotiations, so I do not know what

is likely to be on the table.

He

said that with a certain sense of

relief in your boys. Thank you very

much were joining us on HARDtalk,

Lord Neuberger.

Thank you very much.

Thank you.