Master of the Rolls speaks to Newsnight

Ask the majority of the population who the Master of the Rolls is, and they probably won't have a clue.

But Lord Phillips, the man who rejoices in this ancient title, is the second most senior judge in England and Wales.

He does not give interviews. But now he's done so, because, it turns out, of his deep anxiety about the state of the civil justice system in this country

The man who organises the civil courts in England and Wales, Lord Phillips, runs a system with a budget of over £400 million. But now he warns the system is close to collapse because it's short of money, with dire consequences for people who can't afford to pay court fees.

Over the next three years, he says, the civil courts need an extra £300 million to function properly.

He took over as Master of the Rolls over two years ago. His appointment had been delayed while he chaired the BSE inquiry which ran for three years.

He never comments on the cases he's heard. This month he was one of the Appeal Court judges in the case of the British Al-Qaeda suspect detained without trial by the United States. The court ruled the imprisonment of Feroz Abbasi was legally objectionable because he had no opportunity to challenge the legitimacy of his detention at an American base in Guantanamo Bay in Cuba. But it went on to find that the Foreign Secretary couldn't be compelled to intervene in the case.

He's also been involved in some of the challenges to the Government's asylum policy.

He was one of the appeal judges in the case between the Daily Mirror and Naomi Campbell. The court ruled the paper was justified in publishing details of the super model's drug problems with pictures of her leaving a Narcotics Anonymous meeting.

His personal view is that judges shouldn't take part in debates in the House of Lords and he backs the idea of a separate supreme court. There is, he says, quite enough for the highest court in the land to do dealing with judicial work.

Given the current climate, Jeremy Paxman asked him if he felt civil liberties were now under threat.

LORD PHILLIPS:
If one's not alert, civil liberties will always be under threat. That's one of the reasons why you have judges. Talking of the present climate, do you mean the challenge of terrorism?

PAXMAN:
I mean post September 11th.

PHILLIPS:
Undoubtedly, if you get an event like that, it changes the ball game. Civil liberties have to subsist with other demands that are perfectly legitimate demands. If you get a state of emergency where the life of the country is threatened, then you find the balance between the right of the individual and the interest of the state shifts.

PAXMAN:
Do you think that is legitimate?

PHILLIPS:
It is as long as the correct balance is maintained.

PAXMAN:
How do you make that judgement?

PHILLIPS:
That is a personal judgement I make.

PAXMAN:
Precisely.

PHILLIPS:
Yes. You can't divorce personal judgements in the judiciary. You can divorce the judiciary using their personal opinions when they are applying the law. Whether I thought it was a good idea or a bad idea to change the law to have regard to the threat of terrorism, I'd still apply it as best I could.

PAXMAN:
But your personal feelings can't fail to influence how you come to a conclusion?

PHILLIPS:
As a judge, you do your best to reach your conclusion objectively. Judges are trained in doing this. If your comment is valid it's going to be valid about any judge, however he is appointed, whether he's elected, selected or buys his way into his seat.

PAXMAN:
Do you believe objectivity is obtainable?

PHILLIPS:
To a very large extent, yes.

PAXMAN:
What is the small proportion?

PHILLIPS:
It is, as you say, very difficult, if not impossible in all circumstances, to take out of the act of judging your own individual appraisal of the needs, for instance, of the particular measure that it is designed to serve.

PAXMAN:
When people look at how the law operates in this country, the civil law with which you're concerned, another thing which exercises them is the behaviour of the media. I appreciate you can't go into details of particular cases, but many people say certain elements of the media effectively try individuals and that the balance has shifted, it has all gone wrong there. Would you accept that criticism?

PHILLIPS:
I would go so far as to say it is a danger and it is a danger that is exercising the courts at the moment, particularly in light of the changes that the Human Rights Act has made to our approach to the law. In this country we have never had a law of privacy, as such, in contrast to France or Germany. In France, I don't believe you can take somebody's photograph and publish it in a newspaper. We haven't got that kind of law here.

PAXMAN:
Do you think we should?

PHILLIPS:
I think there is scope for moving further in the direction of protecting individuals' privacy against, for instance, intrusive photography.

PAXMAN:
That would mean a new law protecting people's right to privacy, the right not have to unacknowledged photographs taken?

PHILLIPS:
That would certainly be one way of going about it. That is the way they've dealt with it on the Continent.

PAXMAN:
Would it help you and your colleagues if there were a new law of privacy?

PHILLIPS:
It would make our life very much easier. It's usually easier to apply a statute than to apply principles of common law.

PAXMAN:
Do you agree with the comments of your predecessor, Lord Donaldson, and, indeed, Lord Woolf that you have in this changing environment in which you operate and the rest of us live, you have to be prepared to be unpopular?

PHILLIPS:
Absolutely.

PAXMAN:
How do you judge that you are sufficiently unpopular?

PHILLIPS:
It is not an aim - it may be a consequence of doing your job. If you think that the correct interpretation of a law is one that is going to displease the public, or maybe the Home Secretary, you have to disregard that and go ahead. "Without fear, favour, affection or ill will," is the oath we take when we are made a judge.

PAXMAN:
Are you personally aware when you come to such a decision of the unpopularity that may follow it?

PHILLIPS:
Sometimes, certainly.

PAXMAN:
Looking more broadly at the way the civil justice system is operating, there are a number of complaints that it is creaking at the seams, that things are taking too long to come to court. What is your assessment of the shape it is in?

PHILLIPS:
Two different things. It is creaking at the seams because of lack of resources. The Treasury has introduced, without any parliamentary debate or discussion, a complete change. Yes, it is the job of the state to provide a health service and to provide education. It is not the job of the state to provide a civil justice system. The litigant has to pay in court fees for the cost of maintaining these buildings and for the judges. I don't know any other country where this full cost recovery is imposed. It has dire consequences for an effective civil justice system. The other limb of this is that we are desperately leading to reform our structure. It is part of the same picture. Today, people don't do everything on paper. If they do, it's inefficient and takes a long time. We have to modernise and the court service had prepared a magnificent modernisation programme. All it needed was the funding, and in this spending round we haven't had it. If we don't modernise, the system is going to fall apart.

PAXMAN:
Are you saying that because of the constraints imposed by the Treasury that justice is being denied to some people?

PHILLIPS:
There is a risk of this. Either you raise the fees to cover the costs, or you reduce the resources, you cut staff. Whichever way you do it, you are going to end up denying effective and efficient justice.

PAXMAN:
How urgent is the need for serious investment?

PHILLIPS:
Very urgent. Very urgent. We have been keeping going as a result of the devotion of the court staff and the judges, in conditions which are hardly viable. We can't go on forever.

PAXMAN:
Thank you very much.

This transcript was produced from the teletext subtitles that are generated live for Newsnight. It has been checked against the programme as broadcast, however Newsnight can accept no responsibility for any factual inaccuracies. We will be happy to correct serious errors.