The genre of television documentary and the judiciary both broke new ground in The Highest Court in the Land, a portrait of the new Supreme Court aired last Thursday on BBC4 and available here or direct on BBC iPlayer for the next few days. The breakthrough came in the willingness of the justices to discuss real cases. The tasters were glimpses of their personal and domestic life. We had fetching sequences of the Court President Lord Phillips in Day-Glo stretch Lycra cycling to work through the London traffic at 6 a..m., Lord Hope as a solitary shopper in Sainsbury’s, Lord Kerr smearing Marmite on toast for his wife’s breakfast tray (“I dislike Marmite myself”, he confided) and Lady Hale at the chopping board (“my husband usually does the main course”, declared this champion of equality).
In Phillip’s words, it was all in the interest of presenting our topmost judges as ” ordinary people leading ordinary lives.” Or – he might have added but didn’t – at least as ordinary as gliding from Oxbridge to the bar, and finally reaching the highest bench in the land can be.
Sexism and inequality remain live even politely tense issues. In the Radmacher- Granatino divorce ruling last year for instance, Lady Hale the sole woman member of the court was the only dissenter on the nine- member panel which reached a majority 8-1 decision in favour of the legal status of prenuptial agreements. Hale insisted that prenups ” work against women, usually the less powerful party” and differed from her male colleagues over whether the line-up of justices was purely a coincidence. On gender balance in the court’s make up, she said: “There comes a time when it becomes embarrassing not to have a woman….One of the things it does is to become harder (for the men members) to express sexist views. I wouldn’t like to accuse any of them of being sexist in my absence – but I don’t know, I’m not there.”
Dealing with gender balance on such a sticky wicket, Phillips blocked gamely, if not altogether satisfactorily: ” Ideally I would like six men and six women, but a lot of woman drop out before they can reach the judiciary. It is not easy to combine this with raising a family“
Lawyers are hardly unique there.
As over the prenup ruling, the justices’ willingness to discuss some of the high profile and controversial cases before them was welcome and quite revealing. The court came in for stick when it ruled against allowing the Office of Fair Trading to look into unpopular bank overdraft charges. Said Phillips: “Personally I would be quite in favour of the OFT looking into bank charges, but we have to look at the statute.”
Are majority decisions entirely satisfactory when a different combination of justices could reach a different conclusion? “There is no perfect answer. No judge is omnipotent, but everyone is doing their very best.”
The biggest bone of contention dating back to the law Lords remains the barely suppressed struggle between government and courts over counter terrorism and human rights. “Horrific ” is Phillip’s description of the original post 9/11 indefinite lock up of 17 foreign suspects without charge or notification. Control orders were little better. For 16, hours, 18 hours a day? “How long is a piece of string?” Last year, the government lost the legal battle over control orders, compelling the modifications announced this week.
The big question is, should an unelected court tell the elected government what to do?
Lord Phillips is confident in his answer. Independently appointed judges are the best people to decide whether the government is abiding by the binding principles it has signed up to. On national security and human rights: “By applying the Human Rights Convention we are complying with the wishes of Parliament. Government won’t tear human rights up because it appreciates fundamental human rights.”
And there the matter rests- for the moment.
The Constitution Unit has just begun a three-year rolling research project into judicial independence and accountability. To mark the launch Lord Phillips gives a Constitution Unit lecture on the theme Judicial Independence & Accountability: A View from the Supreme Court. on Tuesday 8th February at 6.00pm in the Gustave Tuck Lecture Theatre, Wilkins Building, University College London.