Transcript

Our comments on what is said

EBS :

[TALK ENDS] ... thank you.

[AUDIENCE APPLAUSE]

PRESENTER [Martin Wharton, CofE Bishop of Newcastle] :

Now, ladies and gentlemen, Dame Elizabeth has said that she'll, eh - what was the word - 'field' - questions for the next quarter of an hour or so. She may not answer them, but she'll at least [UNINTELLIGIBLE PHRASE] know better. Who would like to ask a question ? [POINTING] Yes -

BPW :

Yes - I'd like to come back to the ethical issues that were the title of your talk. Ehm - can I mention two please - there are many I could cover.

First of all, in a democracy it should be for the people and their representatives in Parliament to make laws that the People want. It shouldn't be for judges to be heavily involved in the process, otherwise we put judges in the position of being little dictators, or little tyrants, telling us what to do. I notice that you've been setting agendas, as you have in the past, in the subject of family law.

EBS :

I've been doing what ?

BPW :

In the area of family law - so what is the - you've been setting the agenda - yes, in discussing children's rights for example. So what's the ethics of judges being heavily involved in law-making in a democracy ?

The second thing I'd like to discuss - and you talk about children in cases of separation and so on - is, what is the ethics of 'no-fault' divorce having been introduced by the senior judges, without Parliament's authority, and without the authority of the People of this country. And children being allocated on a 'no-fault' basis, so adulterous and deserting wives get custody of the children - and the money follows of course [EBS STARTS TO ANSWER, BUT HALTS]. What is the ethics of 'no-fault' divorce ?

EBS :

Let me take the second one first, because that's the easier one.

The judges apply the Matrimonial Causes Act of 1973, passed by Parliament. The Matrimonial Causes Act has a number of different grounds for divorce, which include : adultery, behaving in such an unreasonable way that you cannot expect the other spouse to live with the unreasonable spouse, and 5 years without consent, and 2 years consensual divorce. Judges apply the law - we didn't make it. You - take your MP - and your MP or predecessors since 1973 have passed this law.

She answers with respect to the written law's basis of divorce, not outcomes regarding children and money.

She has not even acknowledged that the question referred to children and money being allocated on a 'no-fault' basis. Her reply does not include the word 'ethics' or 'ethical'.

We can question if she has ever considered the ethics of  these issues. Her answer, may have caught her unprepared for the question about ethics.

She says that MPs have made the laws. But she was, until recently, Chair of the Family Justice Committee, set up to advise the government on family law. Her position may well be the most influential position, that any other person has ever been in to advise MPs. Also, below she says that she gave advice to ministers whether they asked for it or not.

So if you don't mind my saying, you're totally up the wrong pole with that one !

In what sense are we "up the wrong pole" ? As she has not included the word 'ethics' or 'ethical' in her answer, then goes on to criticise the person asking the question, she seems to be the one who is "up the wrong pole".

BPW :

Well, eh - can I respond ?

Notice that she does not at all encourage any debate. Given that this is a university setting, where scholarly study and healthy debate are supposed to be encouraged, it is odd that no debate is encouraged.

EBS :

OK, you said that I am doing what I shouldn't do, and I'm not really, because thank goodness I'm no longer a judge. [AUDIENCE LAUGHTER]

The question did not say that she had done anything that she should not have done. She was asked about the ethics of judge's involvement in law-making and 'no-fault' divorce. Perhaps she was feeling nervous about these issues, and about the questions.

That's why I can speak a lot more freely than I did - than I was - but you're saying what is the ethical position of judges setting agendas ?

At the end of the day, there are no changes of significance that Parliament doesn't pass. Parliament is a huge mixture of people in each House. They listen to a wide variety of people, who advise them well or badly. Or, sometimes indifferently. Judges who actually apply the law have got, it seems to me, a duty to tell the Government of the day, whether or not the laws, criminal or family, or whatever it may be, are working, and how it might work better. I have done that with Ministers, they asked me to do it, and I even did it when they didn't. [AUDIENCE LAUGHTER]

She says that "there are no changes of significance that Parliament doesn't pass", which is just not true. The judges have made serious changes to laws e.g. children allocated on no-fault (Allen v Allen, CoA, 1948). But the question brings into focus whether judges should be involved. She does not use the word 'ethics' in her answer.

However, she says that "Judges ... have got, it seems to me, a duty to tell the Government ... , whether or not the laws, criminal or family, or whatever it may be, are working, and how it might work better". So she thinks that judges should tell the Government how to improve laws ? She has just been questioned about the ethics of judges being involved in law-making.

She seems proud to give advice to ministers, whether they asked for it or not.

But judges in family cases usually obtain no feedback about the effectiveness or otherwise of their decisions. They usually only get feedback if a party returns to court, and further evidence is submitted in court e.g. in a new welfare report. Only some cases are taken to the Court of Appeal, most cases decided in lower courts.

But I know perfectly well that they will only put forward the legislation to Parliament, and Parliament will only pass what our democratic institutions do. And I have never - I'm totally unrepentant - saying as a judge as I was, this is what I think should be done. I don't make the decisions, I mearly give advice, as all sorts of lobby groups give advice. And it is up to Ministers, and Parliament, as to whether or not they accept it. And so that - I don't believe - is anything unethical in any of that, that I have been doing.

She says that she is "totally unrepentant". But nobody has accused her of any wrong-doing. She has been asked about the ethics of judges involvement in law-making and 'no-fault' divorce. But has not mentioned the word 'ethics' in her response.

Also she says that she "mearly give[s] advice" and that "all sorts of lobby groups give advice". But she was until 2005, both :

1. the most senior judge in family law, as President of the Family Division, and she says in her reply more than willing to give Ministers advice in this role, and

2. Chair of the Family Justice Committee, that had been set up to advise the Government about family justice.

In other words, the most influential person in the country, to both enforce, and to advise about, family law. We do not think that she has fairly represented her influence by saying that she "mearly [gave] advice, as all sorts of lobby groups give advice".

OK - more questions !

[NEXT QUESTION FOLLOWS]