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tv   HAR Dtalk  BBC News  July 9, 2019 4:30am-5:01am BST

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the leader of the hong kong government, carrie lam, has confirmed a controversial draft law that would have allowed extradition to the chinese mainland is dead and won't be briught back. the planned legislation had prompted mass protests in hong kong. donald trump has announced that he will no longer deal with the uk's ambassador in washington, sir kim darroch, following the leak of e—mails written by the diplomat criticising the president's administation. mr trump also attacked the way, the british prime minister, theresa may, has handled brexit. the american financier jeffrey epstein has pleaded not guilty to trafficking dozens of underage girls for sex more than a decade ago. the 66—year—old appeared in a new york court and was ordered to remain in custody until his bail hearing.
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now on bbc news, it's time for hardtalk. welcome to hardtalk, i'm stephen sackur. the british legal system has long enjoyed an international reputation for independence, integrity and efficiency, but for how much longer? seniorjudges, lawyers and police officers are voicing concern about a judicial system close to breaking point. my guest today is the most 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 it is supposed to serve?
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lady hale, welcome to hardtalk. you have had a seat on the supreme court since its foundation ten years ago. it is something new in the british constitution, do you think it is made a difference? it's made a bit of a difference. there was of course always a top court for the whole united kingdom, but we used to be a committee of the house of lords. and then in 2009 we became this brand—new institution, the supreme court of the united kingdom. so we moved out of the houses of parliament, across the square, into the old middlesex guildhall where we have a very beautiful, open, transparent, accessible building where we do the same job that we did before. and that is interesting. that creation of a sort of clear, blue water between you and parliament.
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do you think it has changed the public perception of the uk's most senior court, the top of the pyramid, if you like? i don't know whether it's changed the public‘s perception of us, it's certainly means the public are more aware of us because they can watch what we're doing, they can wander in off the square, you know, people do. you were... you judges sitting on the supreme court opened your proceedings up to both livestreaming on the internet and the television, something unheard of in the british system, why? because we thought it was important that people knew what we were doing. we are serving the people. yes, i understand that. was there a question in your mind about the nature of public belief in confidence in the judicial system in this country? 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 of general public importance. we're not trying criminals, we're not trying civil orfamily cases. we are a second—tier appeal court.
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so we are very different... but you're the ultimate arbiter, and some of the most difficult moral, ethical and legal cases in the land which have been tested, 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 in symbolic terms, to the health of the entire system. yes. and i put it you that the health of the system right now does not look good. in fact, your predecessor as head of the supreme court talked about what he saw as the "imminent breakdown" of the rule of law in the united kingdom today. that is probably not something that it's appropriate for me to talk about while i'm currently in post, as opposed to after i have retired. but what i would say, was i really want to make clear, that there is a distinction between the law, the rules that constitute the law, which is what we're concerned with, and the running of thejustice system — that is the courts, the tribunals, also the police,
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the crown prosecution service, all of that, which is something separate from what we are mainly concerned about. but would not be right to say that you have to care about the running of that system at all levels? yes. because in the end it comes back to this word i've already used, confidence, and one of the fellow members of the supreme court, lord reed, said just the other day marking this ten—year anniversary of the supreme court, he said "the greatest challenge ofjudging is perhaps to ensure that all segments of the community have confidence in the administration ofjustice". so if there are big problems developing in the administration ofjustice, from the bottom up, you have to care about it. of course we care, of course we care. but we... it's not something that it's in our hands to do much about. that's why i was drawing the distinction between the state
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of the law, which we can do something about, and the state of the justice system, which all we can do is care and complain in the right way. well, i was going to say you have the most extraordinary bully pulpit because ultimately you are the most seniorjudge in the land and if you see things going on... and let's get specific now. let's talk about the way in which cuts to resource to the ministry ofjustice, to key programmes like legal aid, which give financial assistance to give legal representation to those who can least afford it. when you see resources being taken out of that system, for example, it must concern you? of course, of course, because it's essential to any justice system that it is accessible to the people who need it. now, i don't confuse access to justice with access to lawyers. they're not necessarily the same thing, but they often are. and so people who can't afford legal representation or legal help
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or legal advice, ‘cause those are three different things, ought to be able to have it in a good case. and so we do care about the difficulties in that system. so, let me ask you bluntly and directly. the hundreds of millions of pounds that the government has taken out of the legal aid system, what impact has it had on the accessibility of the law, legal representation, to those who can least afford it? 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 or mother and father, just to give the most obvious example. 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,
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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 the government is perfectly well aware of the problems. but put it this way. surely you do have a duty to say if you believe it to be true, that if the wrong decisions are being reached, particularly in the family courts, where more and more people, i think it's a fivefold increase in people representing themselves because they can't afford a lawyer, if that means thatjustice is not being done, that the wrong decisions are being made, you surely have to speak out about that? it may not be that the wrong decisions are being made, it's just putting a different burden on thejudges. one hopes that the judges are still
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making the right decisions. do you think they are? well, i'm not in a position to say, one way 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 of them, reduce it to what you're legally interested in, and then reach a decision. now, tribunaljudges have been doing a very long time,
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but the courtjudges 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. 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.
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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 unfavourable to women in the family. it changed dramatically in the 19705. it got a great deal better. and i wouldn't pretend that it's
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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 19705, 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% — an extraordinarily low figure, which does seem to suggest that women are being let down systemically. it does, i agree with you.
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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—evens 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. 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
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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 of 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 to expect the person to live with them, which is in the case you‘re talking about, or desertion, two years‘ desertion. but nobody bothers with that, because obviously two years‘ consent will do. so most people, because they‘re anxious to get a quick divorce, rely on either adultery or behaviour. and that gets you a very quick divorce, provided you both agree. but you both have to sign up to it. well, you have to divorce... not to contest it. i‘m going back a bit now, but you once wrote, we should be considering whether the legal institution of marriage continues to serve any purpose at all.
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well, that‘s a separate issue. well, i‘m intrigued by that. well, i‘ll talk about it in a minute. but what i wanted to say about the proposed change to the divorce law is that that would provide us with a more straightforward, more honest, a less adversarial system of divorce. and it‘s almost identical to the one that the law commission, when i was in charge of the law commission‘s programme for reform of family law, recommended back in 1990. so i‘m really delighted that the government is taking it forward. now, ok... just one final point on that. the small—c conservative coalition for marriage says that the danger with all these changes is they would destroy the foundations, the fundamentals of marriage — ‘til death us do part. well, i don‘t believe that, because divorce has been available
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in this country since 1857, so it has never been indissoluble. in fact, even before 1857, it wasn‘t indissoluble. if you were rich enough and male enough, then you could get a divorce from parliament. but we‘ve had divorce. the institution of marriage has not collapsed at all, and that‘s very much illustrated by the popularity of gay marriage since it‘s been introduced. if i may, i want to talk about two hugely important cases that you have considered on the supreme court in recent years. one concerns brexit. it‘s the so—called gina miller case, which was a question before you as to whether the triggering of article 50, the procedure to get us out of the european union, had to be approved or given the consent by the parliament.
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the government, the executive, felt they didn‘t need parliamentary consent. you ruled in a hugely significant ruling that it did, and as a result, you were pilloried by elements of the conservative press. what did you take away from that entire process? well, lots and lots of things. well, you‘re going to have to be brief, so try and sum them up. try and sum them up. well, firstly, the pillorying happened to the seniorjudges who sat on the administrative court in the high court, who were labelled enemies of the people. by the time it got up to us, there‘d been enough fuss about that for that not to happen. and another thing — we were televised, of course, so people watched four days of legal argument, realising that we were not debating brexit or no brexit. we were debating the fundamental question, which is that only parliament can change the law. 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 people realised that, and they realised that it was a serious subject. they also realised we were going back to precious parliamentary
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sovereignty established in the 17th century. and, if i may, one more question on brexit. of course, the eu withdrawal act went into law, article 50 was triggered. and there is now, under the eu withdrawal act, a clear delineation of the powers of the british courts, and the fact that they are no longer answerable to... will, come brexit, no longer be answerable to the european court ofjustice. but it does leave some vague language about the way in which, in the future, the british courts can accept the guidance of or the rulings of the european court, if they choose to do so. is it clear in your mind what the relationship, post—brexit, between the british courts and the european court of justice will be? well, one cannot be entirely sure of that until we know what, if any, transitional arrangements there are going to be. if there are no transitional arrangements, then we‘re left
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with the retained european union law, which has been turned into uk law by the withdrawal act. and we‘re entitled in the supreme court to change that law, if we are convinced that a decision of the luxembourg court should be changed, departed from. that, we can do. otherwise, if relevant, we can take into account a luxembourg decision, a subsequent luxembourg decision. yes, so there‘s an element of choice there. well, only... it‘s very much a directed choice. i suppose in essence a lot of people in britain at least will want to know — is it true in your view that we‘re truly, in every legal sense, taking back control? i don‘t think we will know the answer to that until we know what‘s going to happen next. it‘s complicated. it‘s very complicated. well, i‘m afraid, unfortunately,
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the law is quite complicated. well, you can say that again. and i want now, as we‘re almost out of time, to bring you to one extraordinarily, it seems to me, complicated and morally and ethically loaded question, and that is about assisted dying, assisted suicide, some people call it. you, again, personally on the supreme court have faced some difficult cases. i‘m thinking of the paul lamb case, the tony nicklinson case. these are men, different cases, but desperate to be allowed to die, and in grave physical circumstances. the court has not given them what they wanted — assisted suicide, the right to die — because you are guided by law, and you‘ve concluded it would not be legal. should the law change? well, there is an act of parliament that makes it a criminal offence to help somebody to commit suicide.
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i would draw a very clear distinction, incidentally, between assisted suicide and euthanasia, killing somebody, however much they may want to be killed. i think it‘s a very important distinction. but we... there is an act of parliament, and an act of parliament is the law, so we could never have changed it. i was one of the twojustices in the nicklinson case who said that there is... the right to choose the time and manner of your own death is part of the right to respect for private life, which is protected under the european convention on human rights. the question, therefore, is whether the absolute ban on anybody helping you is a proportionate interference with that right.
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lord kerr and i thought that it was not, and that there was a solution that could be devised that would make it acceptable and protect the people who need to be protected. so that was my view. it is fascinating, and it‘s complex. i want to end with this one extraordinary quote from your fellow supreme courtjustice, sitting with you on the bench, lord sumption. he recently said this of the assisted dying debate. he says, "i think the law should continue to criminalise assisted suicide, but i also think that the law should be broken from time to time. it is an untidy compromise, but i don‘t believe there is always a moral obligation to obey the law, and ultimately it‘s for each person to decide." would you go along with that? no. because? i believe the law should be respected. but i believe the law should attempt to accommodate the different moral views that people will have about the situation that we‘re talking about, so that those who need to be protected are protected, and those who are genuinely autonomous, able to make their own decisions without pressure, without anybody forcing them to do what they don‘t
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want to do, so that they can do what they want to do. lady hale, we have to end there. thank you very much for being on hardtalk. thank you. thank you very much. hello. this time last year, we were on a run of five days with temperatures sitting 30 celsius or above somewhere in the uk. great news if you don‘t like heat like that. there is nothing like that on the immediate horizon. high pressure being squeezed to the south, rain—bearing weather fronts moving in, mostly
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across the northern half of the uk, average temperatures for most of us this week. it‘s a warmer start, though, in the morning compared with where we‘ve been over recent mornings, but a lot of cloud around and some outbreaks of rain. this is what it looks like at 8am in the morning, with outbreaks of rain running eastwards across scotland. a few heavier bursts within this. still some patchy rain for northern ireland and northern england. it‘s at least a damp start for some of us here. some of this rain will fringe north wales, through the midlands and even push onto parts of east anglia but it is going to be lighter, more patchy than it is to the north. south of that, a lot of cloud around but there will be some brighter sunny spells to be had here. let‘s take a look at how wimbledon is shaping up for tuesday‘s play, a rather uninspiring look at cloudy skies. a few brighter spells out there, maybe the slight chance of a shower but dry for a full day‘s play once again. this is how tuesday goes. scotland and england and northern ireland will see most of the rain at times, drier interludes but we could see
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an area of heavier rain running eastwards as we go on through the afternoon. again south of that, it is mainly dry. some sunshine, cornwall down to the channel islands, a few spots in the 20s, most of us 195 or low 20s. the next spell of rain could turn things quite wet at the end of the day in northern ireland and southern scotland and northern england, clears overnight. and into wednesday, another spell of rain running into northern ireland and north—west england and western scotland later in the night, and the nights are getting a little warmer. it‘s getting rather humid for many of us as we go through the week. for wednesday then, another spell of rain pushing east to start the day.
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this may end up digging a little further south to parts of eastern england. sunny spells follow, particularly to england and wales. a lot of cloud in scotland and northern ireland, and a few more showers following on as we go through the day. let‘s take a look at thursday, because we could well see some quite heavy, thundery downpours developing in parts of northern ireland, scotland and northern england. by no means everybody will see, them but where they do pop up, that could lead to some disruption in some spots. england and wales a few showers moving west to east and still a few sunny spells as well. into the weekend, showers slowly fade and it‘s drier, sunnier and a little warmer.
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this is the briefing, i‘m sally bundock. our top story: after mass protests in hong kong, the government‘s leader admits the china extradition bill has been a ‘total failure‘. i reiterate here, there is no such plan. the bill is dead. president trump says he will no longer deal with the uk ambassador in washington following leaked memos criticising his administration. we have an exclusive report from hungary on a new raft of restrictions on the media, that has transformed the rights of journalists and campaigners. facebook face—off. why a case in europe‘s top court has major implications for how your personal data is transferred around the world.


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