Lord Bingham has held some of the most significant and important legal offices in the country. He has been Master of the Rolls, Lord Chief Justice and is presently Britain’s most Senior Law Lord in the House of Lords. As such I was somewhat nervous about meeting the man who has been referred to by Louis Blom-Cooper, QC as “Alpha Plus” (his mind as opposed to anything else) and others as “frightening clever”. And on meeting him this becomes almost frightening clear. Lord Tom Bingham of Cornhill not only oozes intelligence, but charm, magnetism and energy. Perhaps what is most unnerving about meeting Lord Bingham in soft surroundings as opposed perhaps to in open court is that he also comes across as that respected older member of the family: Uncle Tom perhaps. It is of no surprise that in times past he has been referred to as both “Gandulf” and “Frodo”, with a little bit of Doctor Who thrown in for good measure.
So as we sat down for tea in his resplendent office in the House of Lords I started by enquiring as to why he became a lawyer?
“Well, one has to earn a living somehow, doesn’t one” he answers mischievously.
Okay, how would he describe his job now?
This is going to take a while.
What does that consist of as you do it now?
“It consists of first, second and third, sitting in court, listening to argument and deciding cases in conjunction with the other members and writing a judgment.”
As simple as that then! Such an answer, deep in modesty, appears to omit however that he is the only Englishman ever to have served as the Master of the Rolls, the Lord Chief Justice and senior law lord in succession.
I decide to raise the stakes. Are Judges really the custodians of our fundamental freedoms?
“I think they are very important custodians. I think it would be rather childish to get involved in some kind of nursery type arguments about whether we are more important guardians of freedom than you are, whether addressed to the House of Commons or whatever. I think if you were to take a long view over the centuries, you could make a plausible case that both bodies have been neglectful of personal freedom at certain stages of history. But I certainly do regard the judges as a fundamental guarantee of lawfulness and I certainly look to the law to protect liberty to the maximum possible extent.”
You can with respect to Lord Bingham, almost see his brain whirling with energy and dynamisium as he prepares his answers. He pauses frequently before answering, considering not only the question; his answer; but also the consequence of his answer on a wider public. He has famously been caught out before; when misquoted (he says) by the flamboyant Conservative MP and former editor of the Spectator magazine Boris Johnson on the subject of cannabis and its legalisation.
I pressed on. The media seem to suggest that the Judges are at war with the government. The true opposition to their policies.
“I think we probably all have a rather unhistorical picture of some golden age in which the parties were very evenly balanced and therefore the government of the day was held rigorously to account for everything it did, or did not do by a vigorous and powerful and alert, vigilant opposition. I think for most of recent history it has not really been like that, and certainly I do not think it’s been like that over the last twenty-five to thirty years, because we had a very strong and dominant Conservative government with a very, very weak Labour opposition.”
And now the reverse is true?
“Yes it has been reversed because over the last eight, we have clearly had a very strong and dominant Labour government, with a very weak Conservative opposition. So, I think it is a natural thing to say 'well, who is putting the spokes in the wheel of the government?’ And the answer has, on a number of prominent occasions, been 'the judges have'. It is not, of course, because the judges have any crusade, to attack the government, it is because governments with very dominant majorities can more or less do what they like and the Judge’s role is to say well you can do what you like, provided it is lawful, and it is not always.”
This brings us on to the politically sensitive subject of terrorism.
“The growth of terrorism undoubtedly is a stimulus to governments to take every kind of step they possibly can to protect the people against catastrophe, and therefore from their point of view, to strain against the bounds of what is legally permissible. This is always, I think, the way. There is nothing novel, except that the situation as it now presents itself is novel.”
It was Bingham and seven of his fellow law lords who delivered the landmark ruling against the government in the case of the nine men being held at Belmarsh prison of suspicion of having links with terrorists. They ruled that indefinite detention without trial contravened the European convention on Human Rights.
“The decision went in favour of the challengers, there was, clearly, you could call it a conflict or a situation of tension between the two, and, the Judges did tell the government that what they were doing was not lawful, and no government likes being told that, of course. I mean, what I found, on the whole, both surprising and rather refreshing, was the extent of support that there was for the judgment. I do not suppose many people read very much of the hundred pages or something that it ran to, but there was, on the whole, and with some exceptions, really rather strong support for it.”
So, if the position is clear in Britain, what about our cousins across the Atlantic, do the Americans have any justification for holding prisoners without trial in Guantanamo Bay?
“My impression is that the legal justifications for doing so are not very strong. It seems to have been a rather suspect decision to incarcerate them in Guantanamo Bay in the first place, because its main qualification seemed to be it was outside the United States”
What do you mean?
“Well this has an interesting parallel with our own history, because, immediately after the Restoration, the government of the day in England, took to sending prisoners to Scotland and the Channel Islands, because habeas corpus did not run in those places and an Act of Parliament was enacted, prohibiting that practice so that it would look as if three hundred and something years ago we actually spotted the strong undesirability of such a practice.”
Well they do say that history often repeats itself. And to that end he is against governments using evidence obtained through torture?
“The principles of the common law, standing alone, in my opinion compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”
So you must be happy with the European Convention on Human Rights?
“Yes! I think, on the whole, it has worked extremely well. And the reasons that led me to favour making it a directly enforceable part of our law I still totally support.
Despite, the general concerns of the media?
“I do not mind whether they are anti it or not. I think one has got to take it case by case. Obviously I do not agree with every decision that any court makes in this country and I do not agree without qualification to every decision that is made in Strasbourg, but it is the nature of the beast that nobody agrees with every decision that any court makes anywhere, ever. On the whole, I do not have much difficulty with the decision-making in Strasbourg and I am rather encouraged at the appearance of dialogue that there is between the courts there and the courts here. We are required to take account of what they decide and they have shown every sign of favour in respect of what we decide.”
And whilst on the subject of civil liberties I asked about ID cards and whether he accepted the popular argument that 'if you have got nothing to fear, then what is the harm in having it?'
“I think the argument that if you have nothing to hide, there is no objection, could be applied to abolish almost every immunity that every citizen has, so that I think one needs to look at that rather sceptically.”
So having the benefit of questioning the interpreter of our laws and I enquired as to whether we have too many laws in this country?
“I think there is much too much legislation, particularly in the criminal field. I do not know if you are alive to the rate at which Parliament has been enacting criminal law statutes over the last few years? It is actually more than anybody can keep up with, so that there are appeals that reach the Court of Appeal where the Judge, with the best will in the world and having scanned the website has not been able to discover all the relevant material that he should be taking account of and applying. I question the usefulness of a good deal of it.”
So why is this? Is it law for law's sake?
“I think there is a very strong and understandable political feeling 'we must be seen to be doing something about this problem or that problem, or the other problem' and I think there is probably a strong belief among politicians that amendments to criminal legislation affect the level of crime in the country to a significant extent. I am unconvinced that the connection is nearly as close as many people would like to think.”
So what should be done, or could be done to prevent this?
“I am obviously not in a position to suggest any golden cure for a problem that has been with us since the beginning of time, but I actually think that education and the inculcation of proper values from an early age”
Is that by way of schooling?
“Well, that would certainly play a big part in it, and something that the government has shown a great interest in, quite rightly in my opinion, an attempt to detect delinquency at quite an early age. I am not an expert in this field, but those who are have certainly told me in the past that you can really quite often recognise a child who is going off the rails at a young age, and what I think has proved to be a very great mistake is to wait until the child has offended again and again and again and everything has been tried, before some draconian order is made. By which time, the child is really quite a hardened offender.
And in that way, does prison work?
“I think prison works in the sense that people do not, on the whole, commit offences whilst they are inside them. But as a means of, so to speak, reforming people, so that they do not commit offences when they come out, the record is not at all encouraging.”
From crime the natural path is to representation and the hue and cry over criminal legal aid, as discussed in this column last month.
“I think it is an important principle that, if anybody faces a criminal charge, that is liable to result in a serious penalty, and certainly in their losing their liberty, and they can not afford to have the assistance of a professional lawyer, then the State should provide it.
Is that in your view by way of the system as it is presently or are we open to other ideas? Perhaps a Public Defender system?
“Provided the Public Defender system was professional and efficient and did its job of protecting the interests of the defendant in an effective way, I would not object to it in principle.”
So would it be better than private practice?
“I would have doubts as to whether it would achieve that. I think there is a tendency for private practice to sharpen the appetite and make people stretch themselves to make sure they do their work as well as they possibly can which would not exist if they had a salary rolled in anyway.”
So what next for the judiciary? After yet another long pause, Lord Bingham gave his opinion on the challenges ahead
“I think the long term challenge of the judiciary is to maintain its standing and authority. Now, it’s very easy to point to a lot of public disaffection with the Judges”
Do you find there is public disaffection?
“Well, I do not really. But you would think so if you read certain sections of the media, which are continually lambasting people for doing things that they think are wrong. But I, in fact think, that there is considerable and almost surprising confidence in the Judges overall, as evidenced by the fact that when there is something really serious and you want somebody who is going to be intelligent and thorough, and can be deeply independent and conscientious, everybody says 'well, let's get a Judge to do it' and this is the same person who, a moment before, in a different column of the same newspaper, is some geriatric who's never lived in the real world and is slobbering into his soup”
Bingham two, the Media nil. So does the judiciary get a balanced press?
“I think they, on occasion, get a bad press. On occasion, they get a good press. I think there is an astonishingly low level of understanding among the British public of what they are doing and what it's all about.”
So why is that?
“I think it is partly because I do not think much instruction goes on in schools. I do not know what title you would put on the lesson, at which you would be told about. I mean it could be called Civics or something”
What do you mean?
“I gave an address, to an audience including quite a lot of very intelligent sixth-formers. I was making a lot of very routine points, among which I alluded to the necessity for judges to be impartial, and one of these schoolgirls said she was fascinated! It had never occurred to her that Judges were meant to be impartial, and I suppose that her vision was that the judge was a man who sat up there in a criminal court and his job was to try and make sure that the defendant got convicted, which, at some stages in our history, was not a thousand miles away from the way the Judges did carry on, but it is an astonishing lacuna in the education of an intelligent child that they end up not appreciating that the Judge's duty is one of impartiality.”
And that is Thomas Bingham. A man at one with his intellect; his integrity and his judiciary. If ever a man was destined to be a Judge, then it was he and as it has proved he is one of our best. A quiet defender of the faith who embodies the ethos of fairness, common sense and impartiality in a post 9/11 society.