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.
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Sarah, I do not think it’s really to do with the education system in the way that you stated. Rather, it is due to the barriers that are in place, which women and ethnic minorities have to overcome. What you failed to report was that the majority of justices were Oxbridge educated ( I do believe they mentioned this fact in the documentary); thus, to me that hints at an old boys network. Within the legal profession anyway, it is very difficult for women to make it to the top. Due to, as Lord Phillip said, family commitments, if they want to have children, then the demands of the job makes it difficult to continue their career path. In the same way, that there are few female partners at top 20 firms, or commercial law firms in general. The legal system is tailored perfectly for white men from Oxbridge, in the same way that Parliament is. Nick Clegg was educated at Cambridge, and David Cameron was educated at Oxford. Thus the barriers that are in place are to do with the hierarachy that’s in place within the education system, which therefore predicts who can get the top jobs within society. Of course, there are always exceptions. I also admire Lady Hale, but she was fortunate she was educated at Cambridge, and has done some fantastic things in her career ( e.g.university lecturer). But this programme was very refreshing, as a current law student, it really brought my Public module to life, and highighted the delicate relationship between the separation of powers within our country.
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I respect your reply to my comment. If what you say is true, that a number of brilliant barristers are from ethnic minorities and women, then why isn’t the Supreme Court more fairly represented to reflect this? That is very unfair in that case. I certainly didn’t meant to imply that people from ethnic minorities are incapable of achieving excellent academic success and go on to rewarding careers – I’m afraid I have not made myself very clear here. I was trying to argue that if the education system in this country was better for all, then people from ethnic minorities and more women would be able to become barristers in the first place. If you are saying they do, and yet the Supreme Court actively chose 1 woman in 12 and no one from an ethnic minority, then I am very disappointed in their selection process. No offence intended whatsover.
It is very dissapointing to suggest that people from ethnic minorities do not obtain good grades at school. show me the statistics. Minority groups put aside, you want to tell me that only one in twelve of all candidates that obtain the required grades in exams are girls. Your analysis does not hold water. Look at the medical profession, where ethinic minority groups are fairly represented on their abilities. And hey they too got excellent GCSE, etc. And just to remind you that there is a good number of brilliant and i mean brilliant barristers from ethnic minotiries and women. However, you are right in saying that the documentary was a good learning material.
I saw this programme last night and was absolutely blown away by the calm, intelligent, reasoned way in which every featured Judge spoke. It reminded me, and hopefully should remind everyone, that there is no ‘absolute certainties’ when it comes to intepreting the law. The best we can hope for is to pick a team of world class legal experts who have a track record of fairness and impartiality, and ask them to make the almost impossible decisions for us. Their rulings will never please everyone, all of the time. But when is that possible in any aspect of life?
Of course the ‘team’ is made up of eleven white men and one white woman. Of course that does not fairly represent Britain’s diversity. But that is not the fault of the judiciary, it is primarily the fault of the education system. If more people from minorities obtained good GCSEs, A levels, obtained law degrees and became barristers then I the Supreme Court would more accurately reflect society. Simples. As it is, let’s respect the current Justices for the thankless work they do and the difficult decisions they must make. Like they said in the programme, they can only interpret the facts of a case in terms of the law which applies to it. This isn’t about a bunch of crusty upper class twits making up laws as they go along.
I particularly warmed to Lord Philips and Lady Hale (I have been and admirer of her work for some time). The programme was intelligently narrated, asked leading questions, encouraged the audience to think widely about the concept of separating parliament and the judiciary, and for me it was one of the best documentaries I’ve seen on the television for a long time. This is the sort of thing we should be showing children in school. Fascinating!