The death of Lord Bingham, the eminent judge and jurist who preferred to be known as Tom Bingham, struck down by cancer at 76, is a great loss. His arguments about fundamental rights, the power of the judiciary and its relationship to parliament gained little public attention, such is the impoverished state of the UK's political culture at the moment. But OurKingdom engaged with them soon after we launched in 2007. He was a powerful advocate of human rights. He recognised that the introduction of such principles into British law had profound constitutional implications. However, when New Labour's sloppy approach appeared to give judges direct authority over the legislation of parliament he insisted that any such change demanded democratic legitimacy. For him, the principles of human rights and the politics of liberty were two sides of the same coin. The clear, forceful but precise passion and intelligence driving this judgment can be witnessed at first hand by watching him deliver his short contribution to the Convention on Modern Liberty. You can see it here. We republish it below. After he retired he published The Rule of Law which among other things set out why the invasion of Iraq was illegal. But it was not merely a book or a summary of a lifetime's work and thought. It was the start of considered public intervention one can see prefigured in his speech and the Guardian article he wrote to publicise the Convention. It was a tragedy that the onset of his cancer struck soon after The Rule of Law was published. Without doubt he would have welcomed the Coalition's Freedom Bill. But already, with signs both in the UK and across Europe that the forces seeking to build a database state are far from stilled, there is a need for the independent, careful authoritative judgement he was uniquely able to make. Anthony Barnett
Discussion of Tom Bingham's ideas and arguments in OurKingdom include:
Lord Bingham's Remarkable Journey, John Jackson, 15 November 2007
Who makes the law in Britain?, John Jackson, 6 December 2007
This is Tom Bingham's speech to the Convention on Modern Liberty, 28 February 2009:
Ladies and Gentlemen, we have heard much discussion in recent years about British values. Questions have been asked about whether such values exist and if so what they are. To our forebears of 1, 2 or 3 centuries ago the answers to these questions would have been obvious. What distinguishes Britain, they would’ve said – proudly and without hesitation – is that personal liberty flourishes here as nowhere else on the face of the earth. And they would, to a very large extent, have been right.
Resonant declarations to that effect can be found down the centuries. But let me come to more recent times. During the second world war, when the survival of this nation really was on the line, a committee chaired by Lord Sankey, a very distinguished former Lord Chancellor, set out to answer a question raised by HG Wells in 1939 and the question was this: What are we fighting for? The committee’s answer was a declaration of rights published in 1947. Advice was taken from many sources: President Roosevelt, the Archbishop of Canterbury and AA Milne. Here was a modern home-grown British declaration of rights described as fundamental and inalienable.
Article 9 was entitled “personal liberty” and I hope you will bear with me if I read it. It is quite long. ‘Unless a man is declared by a competent authority to be a danger to himself or to others, through mental abnormality, a declaration which must be confirmed within 7 days and thereafter reviewed at least annually, he shall not be restrained for more than 24 hours without being charged with a definite offence, nor shall he be remanded for a longer period than 8 days without his consent, nor imprisoned for more than 3 months without a trial.
At a reasonable time before his trial, he shall be furnished with a copy of the evidence which it is proposed shall be used against him. At the end of the three month period, if he has not been tried and sentenced by due process of law he shall be acquitted and released. No man shall be charged more than once for the same offence. Secret evidence is not permissible. Statements recorded in administrative dossiers shall not be used to justify the slightest infringement of personal liberty. A dossier is merely a memorandum for administrative use. It shall not be used without proper confirmation in open court.”
The committee made no reference to the databases, the cameras the gathering of huge quantities of personal and biometric information, the empowering of over 650 public bodies to obtain communications data, the introduction of an ID card rich in personal information and so on.
It made no reference because, doubtless, it failed to foresee these developments. George Orwell’s 1984 had yet to be written. But we cannot doubt how, if blessed with the gift of foresight, the committee would have reacted. So what has changed over the past 60 years – a short period in the life of a nation.
There have, I suggest, been two catalysts of change. The first catalyst is technological advance. It is now technically possible to observe, to record, to track, to measure, to analyse, to retrieve in a way that could never be done before. These new technological methods have, of course, many benign applications, a Luddite approach to them would be absurd but the acquisition of great powers by the state is not a reason for using them, we have after all enjoyed for many years the power to destroy the world but have wisely refrained from doing so.
The acquisition of great powers of the State should rather prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored so as to guarantee that any intrusion into the liberty and privacy of the individual is fully justified by an obviously superior community interest.
It is an old but true saying that the condition upon which liberty has been given to man is eternal vigilance.
The second catalyst of change has been security. Security against terrorist attack, security against the commission of crime: these are not considerations which any rational person would dismiss. But nor are they considerations the mere invocation of which trumps any other. Eternal vigilance must again be the watchword to ensure that intrusive powers are limited to what is demonstrably necessary to ensure that the powers convert for one purpose are not used for another, to detect and eradicate abuses.
It is worth recalling John Locke’s salutary warning: “as soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil which they set out to destroy”. It seems clear that the last half century has seen an erosion of values once held dear. This is not the work of one party or one government, certainly not of the present government which, in enacting the Human Rights Act coming into office, took the single most powerful step in another direction, But overall, an erosion nonetheless.
Can we stem or reverse this trend? Yes, to coin a phrase, we can. How? The first thing is to inform and arouse public opinion. People do not, on the whole, mind what is going on because they haven’t been brought up to cherish the tradition of liberty: they don’t in large measure know what is happening and they think of infringement of liberty as something that only happens to others. The responsibility of the media to inform, explain and warn is paramount, notably discharged by Henry Porter – week in week out – and we must hope that is greatly reinforced by this convention.
There must also be a determined long term educational ambition. For the last few months, the great constitutional building blocks of our liberty have been modestly but movingly displayed in the British Library: the Magna Carta, the declaration of Arbroath, the Bill of Rights, and so on, some understanding of the significance of these documents should be imparted to everyone in this country as part of his or her understanding of the country to which they belong.
Responsibility for protecting the liberty of the citizen must also rest on Parliament and the House of Commons, traditionally regarded as the watchdog that will arrest any extension of ministerial power. But the watchdog has lacked ferocity of late, if, that is, a government with a reasonable majority can impose its will on its own members, regardless of its private reservations and thus on the House of Commons as a whole and so legislate without effective restraint then that is a defect in our constitution. Compounded by an increased willingness to bypass the House of Lords, which calls for attention, the Commons should be a bastion and defender of our freedoms, not an accomplice on their unjustified erosion.
And then, thirdly, there is a responsibility on the courts: from their development of habeas corpus onwards the courts have – on notable occasions, but not always – proved staunch defenders of personal liberty. The law favours liberty, says Sir Edward Cook. And so it should, but the courts have been fairly described as the weakest department of government. They can initiate nothing. They cannot annul legislation even when it is incompatible with the human rights convention. They acknowledge as they have always done, the supremacy of Parliament. They can check executive lawlessness, but they cannot dictate executive policy.
The Prime Minister said in June 2008, that these issues – how we maintain our security and advance our freedoms – are some of the biggest questions governments have to face. They are some of the biggest questions which we all have to face. That is why this convention is so timely and so important.
A candle may today be lit or re-lit in Britain, which we may fervently hope shall never be put out. Thank you.