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tv   HAR Dtalk  BBC News  July 8, 2019 4:30am-5:01am BST

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you‘re talking about, or desertion, two years‘ desertion. and, if i may, one more but nobody bothers with that, question on brexit. because obviously two years‘ of course, the eu withdrawal act the headlines: went into law, article greece's centre—right opposition consent will do. so most people, because they‘re 50 was triggered. party new democracy is on course and there is now, under to win the snap general election anxious to get a quick divorce, the eu withdrawal act, with an overall parliamentary rely on either a clear delineation of the powers majority. adultery or behaviour. and that gets you a very quick of the british courts, and the fact that they are no party leader kyriakos mitsotakis divorce, provided you both agree. but you both have to sign up to it. longer answerable to — said he now had a clear mandate will, come brexit, no for change, with fewer taxes well, you have to not contest it. longer be answerable and more investment and jobs. to the european court ofjustice. he will take office on monday. i‘m going back a bit now, but it leaves some vague language about the way in which, but you once wrote, we should be considering whether the legal in the future, british courts institution of marriage continues can accept the guidance to serve any purpose at all. of or the rulings of the european court, if they choose a separate issue. well, i‘m intrigued by that. to do so. is it clear to you i‘ll talk about it in a minute. what the relationship, the uk government has begun what i wanted to say post—brexit, between british courts about the proposed change and the european court an investigation into who leaked to the divorce law is that that of justice will be? emails from britain's ambassador one cannot be entirely sure to washington describing the trump would provide us with a more of that until we know what, administration as being inept straightforward, more honest, a less and uniquely dysfunctional. if any, transitional arrangements president trump responded adversarial system of divorce. there are going to be. to the comments by saying that and it‘s almost identical to the one if there are no transitional sir kim darroch had not that the law commission, arrangements, then we‘re left when i was in charge with the retained european union of the law commission‘s programme served britain well. law, which has been turned into uk for reform of family law, law by the withdrawal act. recommended back in 1990. and we‘re entitled in team usa has triumphed so i‘m really delighted the supreme court to change that at the women's world cup that the government for a record fourth time. is taking it forward. now, ok... law, if we are convinced that they overcame a resolute dutch side just one final point on that. a decision of the luxembourg court in france to retain their title. the small—c conservative coalition should be changed, departed from. the tournament has enjoyed record tv for marriage says that the danger that, we can do. audiences for women's football, with all these changes otherwise, if relevant, particularly in europe is they would destroy we can take into account the foundations, the fundamentals a luxembourg decision, a subsequent luxembourg decision. yes, so there‘s an element of choice there. well, only — it‘s very of marriage — ‘til death do us part. much a directed choice. and south america. well, i don‘t believe that,
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i suppose in essence a lot of people in britain at least will want to know — because divorce has been available is it true in your view that we‘re truly, in every legal sense, now on bbc news, hardtalk. taking back control? i don‘t think we will know in this country since 1857, the answer to that until we know what‘s going to happen next. so it has never been indissoluble. it‘s complicated. welcome to hardtalk, it‘s very complicated. i'm stephen sackur. in fact, even before 1857, well, i‘m afraid, unfortunately, the law is quite complicated. the british legal system has long well, you can say that again. enjoyed an international reputation it wasn‘t indissoluble. for independence, integrity and efficiency, if you were rich enough and male but for how much longer? enough, then you could get a divorce from parliament. but we‘ve had divorce. and i want now, as we‘re almost out the institution of marriage has not collapsed at all, of time, to bring you to one and that‘s very much illustrated seniorjudges, lawyers and police by the popularity of gay marriage extraordinarily, it seems to me, officers are voicing concern complicated and morally since it has been introduced. and ethically loaded question, about a judicial system close to breaking point. and that is about assisted dying, my guest today is the most assisted suicide, seniorjudge in the land, president of the uk's supreme court, lady hale. is one of the world's most—admired justice systems failing the people some people call it. it is supposed to serve? if i may, i want to talk about two hugely important cases that you have considered on the supreme court in recent years. you, again, personally one concerns brexit. on the supreme court have faced some it‘s the so—called gina miller case, difficult cases, the paul lamb case, which was a question before you as to whether the triggering of article 50, the procedure to get the tony nicklinson case. us out of the european union, had to be approved or given the consent by the parliament. these are men, different cases, the government, the executive, felt they didn‘t need but desperate to be allowed to die, parliamentary consent. and in grave physical circumstances.
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you ruled in a hugely significant ruling that it did, the court has not given and as a result, you were them what they wanted — assisted suicide, the right to die, because you‘re guided by law, pilloried by elements and you‘ve concluded it would not be legal. should the law change? lady hale, welcome to hardtalk. you have had a seat well, there is an act of parliament on the supreme court since its foundation ten years ago. of the conservative press. what did you take away from that entire process? that makes it a criminal offence well, lots and lots of things. it is something new in well, you‘re going to have to be the british constitution, do you think it is brief, so try and sum them up. to help somebody to commit suicide. made a difference? try and sum them up. it's made a bit of a difference. well, firstly, the pillorying happened to the seniorjudges i would draw a very clear there was of course always a top who sat on the administrative court distinction, incidentally, between assisted suicide court for the whole united kingdom, in the high court, who were labelled and euthanasia, killing somebody, but we used to be a committee enemies of the people. by the time it got up to us, however much they may of the house of lords. there‘d been enough fuss about that and then in 2009 we became this brand—new institution, for that not to happen. and another thing — the supreme court of the united kingdom. we were televised, of course, so we moved out of the houses so people watched four days of legal argument, of parliament, across the square, realising that we were not debating into the old middlesex guildhall brexit or no brexit. where we have a very beautiful, we were debating the fundamental want to be killed. question, which is that only open, transparent, accessible building where we do the same job parliament can change the law. that we did before. so, if pressing the article 50 trigger would inevitably lead to a change in the law, then parliament had to authorise it. that was what we were debating, and that is interesting. and people realised that, that creation of a sort i think it‘s a very important distinction. of clear, blue water and they realised that it but we — there is an act
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between you and parliament. was a serious subject. do you think it has changed they also realised we were going of parliament, and an act back to precious parliamentary 00:03:03,594 --> 2147483051:38:16,512 sovereignty established 2147483051:38:16,512 --> 4294966103:13:29,430 in the 17th century. of parliament is the law, the public perception of the uk's most senior court, the top so we could never have changed it. i was one of the two justices in the nicklinson case who said of the pyramid, if you like? that there is — the right to choose the time and manner of your own death is part i don't know whether it's changed of the right to respect for private the public‘s perception of us, life, which is protected under it's certainly means the public the european convention on human are more aware of us rights. the question, therefore, because they can watch what we're is whether the absolute ban doing, they can wander in off on anybody helping you is a proportionate interference the square, you know, people do. with that right. lord kerr and i thought that it was not, and that there was a solution that could be devised you were — you judges sitting that would make it acceptable on the supreme court opened your proceedings up to both and protect the people who need to be protected. livestreaming on the internet so that‘s — that was my view. and the television, something unheard of in the british system, why? because we thought it was important that people knew what we were doing. it's serving the people. yes, i understand that. it is fascinating, and it‘s complex. was there a question in your mind i want to end with this one about the nature of public belief extraordinary quote from your fellow in confidence in the judicial supreme courtjustice, sitting with you on the bench, lord sumption. he recently said this of the assisted dying debate. system in this country? he says, i think the law should continue to criminalise assisted suicide, but i also think well, we are a very small part of thejudicial system. we are a sort of cherry at the top of the cake. we are only dealing in points of law that the law should be broken
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of general public importance, from time to time. it is an untidy compromise, we're not trying criminals, but i don‘t think there is always we're not trying civil orfamily a moral obligation to obey the law, cases. and ultimately it is for each person to decide. we are a second—tier appeal court. would you go along with that? so we are very different... no. because? i believe the law but you're the ultimate arbiter, should be respected. and some of the most difficult but i believe the law should attempt to accommodate the different moral moral, ethical and legal cases in the land which have been tested, views that people will have almost to destruction in the lower courts, they come to you for that final arbitration, so you matter a very great deal, if not at least about the situation that we‘re in symbolic terms, to the health of the entire system. yes. and i put it you that the health talking about, so that those of the system right now does not who need to be protected are protected, and those look good. who are genuinely autonomous, able to make their own decisions in fact, your predecessor as head without pressure, without anybody of the supreme court talked forcing them to do what they don‘t about what he saw as the "imminent want to do, so that they can do breakdown" of the rule of law in the united kingdom today. what they want to do. lady hale, we have to end there. thank you very much for being on hardtalk. that is probably not something thank you. thank you very much. that is appropriate for me to talk about while i'm currently in post as opposed to after i have retired
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but what i would say, was i really want to make clear, that there is a distinction between the law, the rules that hello. constitute the law, which is what we're concerned with, and the running of thejustice system — that is the courts, well, after a fine end to the weekend, the forecast the tribunals, also the police, for monday is looking pretty decent the crown prosecution service, all of that, which is something separate from what we are mainly concerned about. across most of the uk. but would not be right to say that you have to care about the running of that system at all levels? a lot of sunshine in the forecast. yes. because in the end it comes back however, the week ahead is going to be quite changeable. to this word i've already used, i think many of us at one point confidence, and one of the fellow or another will get at least members of the supreme court, a little bit of rainfall. now, here‘s the latest satellite lord reed, said just the other day picture, and clouds are gathering marking this ten year anniversary just to the north—west of the uk, of the supreme court, in fact, streaming in into ireland right now, so that means that the skies will be pretty hazy across some western parts of the uk. and the high pressure is moving away he said "the greatest challenge ofjudging is perhaps to ensure and giving way to these weather fronts here in the atlantic. that all segments of the community have but the high pressure confidence in the administration will be back later on, of justice". once these weather so if there are big problems fronts push through. so the forecast on monday morning, developing in the administration then — a lot of hazy weather
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there first thing across many ofjustice, from the bottom up, western parts of the uk, but i think it‘ll start off clear you have to care about it. of course we care, across much of scotland, of course we care. eastern and southern but we — parts of the uk. in fact, pretty chilly very early in the morning there in eastern it's not something that it's scotland and north—east england. in our hands to do much about. temperatures could be as low as two or three degrees above freezing, that's why i was drawing a real nip in the air. the distinction between the state of the law, which we can do now, here‘s monday morning itself, something about, and the state so pretty cloudy across ireland. of the justice system, northern ireland there getting rainfall for sure. which all we can do is care belfast probably by late morning, early afternoon getting some and complain in the right way. spots of rain. nothing too heavy, but it will be well, i was going to say very damp, and then eventually that rainfall will reach south—western you have the most extraordinary scotland, later in the day or come evening. the vast majority of bully pulpit because ultimately the uk, a bright day. you are the most seniorjudge bar a few showers there, in the land and if you see things going on, and let's maybe in the south, the weather get specific now. let's talk about the way is looking sunny. beautiful around the in which cuts to resource to the ministry ofjustice, english channel coasts. to key programmes like legal aid, which give financial assistance to give legal representation how about the championships, to those then, at wimbledon? who can least afford it. beautiful weather — when you see resources being taken out of that system, temperatures of around 20 degrees for example, it must concern you? of course, of course. because it's essential to any celsius, light winds as well. now, here‘s tuesday‘s justice system that it is accessible weather forecast. to the people who need it. it looks as though we‘ll see high pressure developing across the south now, i don't confuse access once again, but weather fronts moving through northern parts
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to justice with access to lawyers. of the uk, so there is going to be a definite split between the north and the south. they're not necessarily the same we‘ll call it the northern two thirds of the country pretty cloudy, thing, but they often are. with a few glimmers of brightness from time to time. and so people who can't afford legal some rain for belfast, glasgow, probably many western and northern representation or legal parts of scotland too. a few spots of rain possible around help or legal advice, ‘cause those the lake district and yorkshire. are three different things, ought to be able to have southwards of that, it should it in a good case. just about stay dry, and so we do care about but pretty cloudy. the south coast itself on tuesday the difficulties in that system. looking mostly on the sunny side. so, let me ask you bluntly and directly. not cold — temperatures even the hundreds of millions of pounds in belfast getting up to around 21 that the government has taken out degrees celsius, and if anything they could be peaking, of the legal aid system, what impact has it had those temperatures, at around 25 in the south, on the accessibility of the law, in london, come wednesday. legal representation, but, on the whole, quite a bit to those who can least afford it? of cloud around there. you can see these weather symbols showing some rainfall from time to time, too. bye— bye. it has had a considerable impact, because what happened was that any sort of public funding was withdrawn from whole areas of legal activity. such as, for example, disputes between husband and wife for mother and father, just to give the most obvious example.
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now, most people, if they can go to a lawyer, they can get advice about what the law is and how it's going to affect them. they can get help with writing letters, making phone calls, doing negotiations, and most times the lawyer can sort the problem out without having to get anywhere near a court. and so the withdrawal of that sort of help has meant that far more people are having to go to court because they can't possibly negotiate with one another direct and they don't have the help that would tell them how to do it. and so we're up with a great many more people representing themselves in court when they wouldn't have needed to go there at all, had it not been for this. and how corrosive is that? well, it's corrosive in lots of ways. it's obviously corrosive of their relationship. and if you're a mother and father who are separating and you need to make arrangements for what's to happen to your children, you really need to stay on as good terms as you possibly can,
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because you're going to have to negotiate changes in those arrangements. they can't be set in stone forever. that's an obvious example. so it is corrosive of relationships. it probably doesn't help in disputes between husband and wife, because if you're having to deal face—to—face as opposed to through — with the help of lawyers, it's much harder. so your message to the government is what? that they need to put the money back into the legal aid system? it's not for me to give messages to the government. i'm a judge, i'm not a politician. i've got to be very careful. i can point out what the problems are, and i can say that this is the briefing, i‘m maryam moshiri. the government is perfectly well our top story: aware of the problems. a landslide victory for greece‘s centre—right opposition spells the end for the socialists but put it this way. surely you do have a duty to say if you believe it to be true, and ushers in a new era. that if the wrong decisions are being reached, particularly in the family courts, where more and more people, i think it's president trump says the british ambassador who labelled his team a fivefold increase in people representing themselves dysfunctional and divided because they can't afford a lawyer, if that means thatjustice is not being done, that the wrong decisions hasn‘t served the uk well.
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are being made, you surely have to speak out about that? accused of mass murder, rape, and abduction, congolese warlord bosco it may not be that the wrong ntaganda awaits a verdict decisions are being made, at the international criminal court. it's just putting a different burden on thejudges. one hopes that the judges are still making the right decisions. do you think they are? deutsche bank downsizing. well, i'm not in a position to say, one or another. you should ask the president of the family division. but he would probably say the judges are having obviously to do things that they didn't have to do before, and they're having to do cases that they wouldn't have had to do before. and i think it's more... are the judges equipped — i'm not quite sure what these things are that they're doing that they weren't doing before, but are they are equipped to do them? obviously — well, yes, but it's a different skill. it's a different skill acting as an umpire between two lawyers arguing each side of the case, and then mutually listening to that and making your decision, to dealing with two litigants in person who don't know what they're doing, and you have therefore to get the story out of them, get the arguments out
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of them, reduce it to what you're legally interested in, and then reach a decision. now, tribunalsjudges have been doing a very long time, but the court judges have not been doing it as often as they now have to do. do you see a system today that, because of resourcing issues, is very close to collapse? i don't see that, but it may... others may be better qualified tojudge it than i am. i know that the recently retired president of queen's bench division, sir brian leveson, has commented on the criminaljustice system and the problems that it faces. now, that's not so much the courts. that is the police and the crown prosecution service and the resources to investigating crime and prosecuting it. police cuts, 20,000 more in recent years. that's right. i'm fairly sure that that's what sir brian was commenting on, and i suspect that some of that would have been at the back of lord neuberger‘s concern.
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let me ask you something a little different, but very germane to your legal career, much of which was in academia, before you took one of the most senior positions in the land in a court. you've always focused on family law, and in particular the way in which the law is fair or perhaps not fair to women. do you believe that the law continues to fail women? there are probably ways in which it does. i haven't spent my whole life in family law, may i say. i spent my whole life really in a very wide range of legal subjects. the only time i concentrated mostly on family law was the five years i was in the family division of the high court. but, before and after that, i have dealt with just about every area of the law. but the law used to be extremely
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unfavourable to women in the family. it changed dramatically in the 1970s. it got a great deal better. and i wouldn't pretend that it's perfect, but it is a great deal better than it was. similarly, in the workplace, we had the equal pay act and the sex discrimination act in the 1970s, and that changed a lot of things in the workplace and in the marketplace generally. it's hard to think back to how things were before that. but i'm not pretending it's perfect. no, and one way in which it seems many women feel it's not perfect is that the way in which women still are treated by the system when they report violent sexual abuse against them, including rape. and the figures which we see in the british system today are still shocking. that the proportion of rapes that lead to criminal charges, that is rapes reported to the police that leads to criminal charges, has fallen to under 2% —
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an extraordinarily low figure, which does seem to suggest that women are being let down systemically. it does. i agree with you. and what can the system do to rectify that, because this has been discussed for years? it has, and various things have been done to try and make things better under the previous dpp, but one, they took a different approach to assessing the likelihood of securing a conviction because the two tests that the crown prosecution service subject any case to is the likelihood of a better—than—even chance of securing a conviction, and also the public interest. so they take those two things into account, but better—than—even chance of securing a conviction was always going to be problematic in rape cases.
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let me ask you about a different aspect of the law as it affects men and women and families in their personal life, and that is divorce. i'm very mindful that a few years ago, on the supreme court, you sat as one of the justices hearing a case concerning a woman who marriage had irretrievably broken down, but her husband would not give her a divorce. and in the british system, the fault—based system, unless he was prepared to accept fault, or at least one of them was prepared to accept fault and consent to a divorce, the divorce couldn't happen for at least five years, a formal separation. you upheld the lower court's rulings. you did not give the woman what she wanted. and yet you also talked about the way in which british divorce laws were, in your word, unjust. the government is trying to change them now. do you believe they are being changed in a way that is going to make them just? i believe that the government's proposals, which are currently before parliament, so it's obviously a matter for parliament, would indeed be a great improvement on the current state of our law.
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they would introduce no—fault divorce, basically. well, we already have no—fault divorce, because the only ground for divorce is that the marriage is irretrievably broken down. the problem is you can only prove it in one of five ways. either five years‘ separation without consent, two years‘ separation with consent, or by showing adultery, or that the other person has behaved in a way that it‘s not reasonable 00:16:26,975 --> 2147483051:44:58,202 to expect the person to live 2147483051:44:58,202 --> 4294966103:13:29,430 with them, which is in the case
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