Gordon Campbell talks to Britain’s foremost legal authority about human rights in the post 9/11 world, and the war in Iraq.
In April this year, the Times newspaper listed “ The 100 Most Powerful Lawyers in Britain” and noted there was “no contest” about who was number one: Lord Bingham of Cornhill. His eminence was not simply due to the titles he has held with supreme skill : Master of the Rolls, Lord Chief Justice and senior Law Lord. During the early 2000s, Thomas Bingham (and the Law Lords he led ) delivered a series of major human rights judgements – eg on indefinite detention, and on the use of evidence gained from torture – that beat back some of the worst authoritarian impulses of the Blair government. In the process, Bingham’s court shored up several ancient civil liberties in Britain that had suddenly come under attack from the executive in the wake of 9/11.
Not all – or even most – of those battles have been won. The British government still permits the longest detention-without-warrant period in Europe, and was recently defeated in its attempts to extend it even further. Routinely, in immigration and terrorism cases, secret evidence is used. Often, the protections given by the courts to secret evidence – which abridge the rights of the accused to a full and fair hearing – seem more about protecting the evidence and/or the security agencies from embarrassing scrutiny, than with protecting the life of the nation. Like a blanket thrown over a birdcage, national security has been invoked in court proceedings post 9/11, in ways that make proper testing of the evidence difficult, and at times, impossible.
By temperament and training, Bingham is not a crusader. Yet read any of his major judgements from the past decade, and the lucid way he has resolved complex points of the law comes as close to poetry as solid legal argument is likely to achieve. In a speech in defence of international law principles a couple of weeks ago, Bingham attacked the war in Iraq as illegal – in that the invasion in March 2003 lacked proper authority from the UN Security Council. The illegality of the Iraq war, Bingham noted, marked the difference between being a world policeman, and a world vigilante.
While in Wellington this month to deliver the Sir Robin Cook Memorial Lecture, Lord Bingham spoke with Scoop political editor Gordon Campbell.
Campbell : The UK Supreme Court will be open for business next October. Apart from the tidiness of separating the role of the House of Lords as both a legislature and a judiciary, could you tell me why this change is worth the cost involved?
Bingham : I can’t fully say why the government made the decision. I have myself advocated this change before the government announced it, at a time when it was showing no enthusiasm for it, because I think it is important that institutions should look like what they are. And the appellate committee of the House of Lords is the supreme court of the United Kingdom. It is not a legislative body. And for various reasons, the Law Lords over time, have come to play less and less and less part in the legislative business in the House of Lords.
Campbell : So the change is less in the business that it does, than in the position from which it does its business ? Meaning, there will be little or no substantive change in the kind of work it will do?
Bingham : Yes. There is very, very little change in the powers. Indeed, only one. At the moment issues about devolution in Scotland and Northern Ireland and Wales – if there is a question as to whether the ministers in the devolved jurisdictions have exceeded their powers, that goes to the Privy Council at present. It will, under the new dispensation go to the Supreme Court. And that’s a more sensible place for it to go.
Campbell : So if I can ask the tabloid question, what will the taxpayer – who will be paying the 50 million pounds sterling cost involved – be getting for their money?
Bingham : They will be getting what every other country in the world has – which is a Supreme Court which is a purely judicial body, functioning as such. And not masquerading as a committee of the legislature. On the question of cost, you put the figure to me in a way that makes it sound very expensive. What you’re actually talking about is the cost of converting the building. But it’s a trivial cost, for a country such as ours.
Campbell : Since 1998, the European Convention on Human Rights can be invoked in a British court, before a British judge – give or take a few articles and protocols that Britain has not embraced –
Bingham . Yes, It was 2000 properly speaking, when the law came into force.
Campbell : Why is this a good thing, rather an alien source of confusion?
Bingham : It’s a good thing because these rights are fundamental. They are so described in the Convention that we helped to draft and were the first state to sign, and ratify. And the business of the courts is to protect rights that are fundamental. And although in 1951 we rather thought, as I think the French did, that human rights were very good in their way and wonderful for other people…. But we assumed that we already had them. That was the prelude to a great series of adverse decisions to the United Kingdom in Strasbourg. There aren’t that many articles in the Convention during that period that the United Kingdom was not held to have violated. So it can’t really be plausible that [beforehand] there was adequate protection. really.
Campbell : There are no over-ride powers given to the Strasbourg court though, when it comes to British statute, right? All that one can achieve when there is an impasse is a declaration of incompatibility. Isn’t that just a judicial dead end?
Bingham : No, its not. As you will, I’m sure, appreciate, the reason why that rather novel expedient was adopted was to preserve the sovereignty of Parliament. In the first place, I don’t think the government would have got the Bill through Parliament if the courts had been given power to annul or put aside or strike down Acts of Parliament. But of course, the United Kingdom is bound in international law, to abide by the Convention – and if a United Kingdom court makes a declaration of incompatibility, while a Minister is not bound, and government isn’t bound and Parliament isn’t bound to take any notice, they must appreciate that they’re likely to lose if the complainant goes to Strasbourg. And if the complainant goes to Strasbourg and wins, then the government is bound in international law, to comply and give effect to the judgement. And so far, it has done so.
Campbell : On a related point, we have seen UN conventions and treaties brought into domestic law in many Commonwealth jurisdictions – and there has been a fertile traffic in precedents between Canada, the UK, Australia and New Zealand as to how they should be used and interpreted. Obvious question – do you welcome these signs of convergence, and are there any risks to domestic law and autonomy from this globalization of the law?
Bingham : I do welcome this trend. Because I think the right not to be subjected to torture or to cruel, in human or degrading punishment which ought to be enjoyed equally by a Canadian, a New Zealander, an Australian an American, a Brit or what have you. I don’t think these are rights which, in English terms, ought to cease at Dover.
Campbell : Yes, and you wrote one of the major judgments ruling out the use of evidence gained by torture. Do you have similar misgivings about evidence derived from second hand, third hand – or by the time it gets to New Zealand, fourth hand – information gathered by security services?
Bingham : For what purpose?
Campbell : For any purpose where the evidential quality is important. Which is the same worry as with the evidence in the torture cases.
Bingham : Not just, not just.
Campbell : OK. Admittedly, there was a human rights dimension expressed in the Torture Convention as to why such evidence was not acceptable. But there was also an evidential tainting from those kind of procedures – and I am carrying this over to say that increasingly, we are seeing security services putting forward second hand, third hand, fourth hand intelligence traffic – valid enough for that purpose – but not of sufficient quality to stand test in a court of law. And I’m asking what you think of the attempts to do so, especially under the mantra of national security?
Bingham : I think it depends completely on what use somebody wants to make of it. Suppose for example, that the police from the most dubious and tenth hand sources, have reason to believe there was a large bomb under Parliament Buildings in Wellington. It would be completely absurd to say well, this isn’t very kosher evidence, so we’ll ignore it.
On the other hand, if somebody is in a position where they are either being prosecuted for crime or at risk of serious adverse consequences as a result of some more or less judicial determination, then you’ve got to be sure they’ve had a fair trial, and a fair hearing. And the moment you start talking about a fair hearing or a fair trial, the question of what is ….
Campbell : The quality of the evidence ?
Bingham : The quality, and what the evidence is of, and how well placed the defendant if you call him that, is to challenge it – all becomes crucial.
Campbell : Right. And speaking generally, when the authorities do invoke national security as a rationale for infringing the right to a full and fair hearing of the evidence, how do you think the judiciary should respond?
Bingham : I’m afraid this is an unsatisfactory answer, but it all depends on the precise situation. But I don’t think I have ever encountered anybody who is willing to argue that in this kind of situation – whether its a criminal situation or what I’ve called in other contexts a hybrid hearing – that it doesn’t matter whether the trial or hearing is fair or not.
Campbell : No, what they say is ‘as fair as you can be.’ Which arguably isn’t fair enough, given the consequences.
Bingham : Well, its either fair or it isn’t. The judge has to decide. And that may mean, the defendant, if you call him that, isn’t told everything but he must be told…enough.
Campbell . On that point, Justice William Brennan said that when national security is invoked to justify curtailing the rights of the accused, the courts should treat such a rationale with healthy skepticism. In your view, is that attitude desirable?
Bingham : I think its desirable to approach almost any evidence with an open mind. I don’t think one should have some sort of pre-conceived notion that its all likely to be baloney. But it may be that evidence, as it comes out, does strike one as being extremely thin.
Campbell : One of the interesting strands in your judgments on terrorism is that countries can’t simply deport suspected terrorists to do their business elsewhere – presumably because if terrorism is a global problem each country has to treat the safety of the innocents beyond its borders with equal respect. Why isn’t simply deporting a dangerous person always a satisfactory solution?
Bingham : It is a satisfactory solution if you can. But there is a decision – which the European Court of Human Rights has been urged to revise, and it has firmly declined to do so – that says you may not deport somebody, even if you regard them as a risk to your own nationals, to a country where they stand a real risk of being tortured. Because they say, the prohibition on torture is absolute. Non-derogable. You can’t opt out of it.
Campbell : And the British government has cited that Chahal decision as being an impediment to their ability to properly safeguard the public.
Bingham : Yes it has. The United Kingdom government is very hostile to the decision in Chahal, and it intervened in a later case called Sardi v Italy in order to ask the European Court to think again.
Campbell : And isn’t this part of the claim by politicians that the courts are treating public safety as less important than the human rights of terrorists?
Bingham : I would reject that question completely. I’m speaking of course, from a British perspective, which is all I know about. But the British courts have been told to give effect to the European Convention. This is not something they’re given an option to do. They act unlawfully if they act inconsistently with the rights of the Convention. And they have been told to interpret British legislation so far as possible, consistently to it. Or to make a declaration of incompatibility if it is impossible to read it consistently. So the British courts are doing precisely what the democratic assembly of the United Kingdom told them to do.
Campbell : By doing so, it has become perceived to be the last line of defence of some very traditional freedoms.
Bingham : What has ?
Campbell : The Law Lords. Put it this way. In your lifetime on the bench you’ve seen centuries-old freedoms being threatened and infringed – habeas corpus, the right to hear and challenge all the relevant evidence, the suggestion that ‘beyond reasonable doubt’ should be changed to an ‘on the balance of probabilities’ test. How is it that the courts have become the last line of defence for such ancient freedoms ?
Bingham : It is very difficult to answer that, extremely briefly. For reasons well known to everyone, the first 50 or 60 years of the 20th century were dominated by very severe crises threatening, in a very real sense, the life of the nation. And I don’t think it is at all surprising that during that period the courts were rather inclined to recognize the need of the executive to make sure the survival of the nation, whatever else happened. Those major crises have receded.
We obviously face a severe threat from terrorism – but I don’t think anyone, asked for their own opinions, would think that the criminal activity of al-Qaeda threatened the life of the nation. In that situation, it does seem to me that the business of the courts to do exactly that you’ve described – namely to protect, according to law the rights of citizens, as they’ve been handed down over centuries. Particularly when that is exactly what the Human Rights Act has commanded them to do.
Campbell : Are you aware that in the process, you’ve become something of a culture hero to the liberal left?
Bingham : One gets accused of all sorts of things, by all sorts of people. It is, I think, inevitable that at a time like the present, a government wants to be seen to be doing absolutely all it can to protect the public from violence and mayhem and catastrophe caused by terrorists. And so it exercises its powers out to what it regards as the very limit. But that effort – and it is a laudable endeavour, one doesn’t disparage it in any way – does mean that the government may trespass beyond. And that is the business of the courts to say so.
Campbell : But hasn’t it now become more than the usual dance, to and fro, between statute and court rulings ? Traditionally, that has been seen as a healthy adjustment. Yet it now seems the courts are actually defending the public against authoritarian tendencies in government that encroach on some of the foundation principles of democratic society.
Bingham : You’re painting it in rather lurid terms, if I may say so. I’ve described the relationship on some earlier occasion, as showing a necessary and proper tension. I would think it rather sinister if the government approved of all the decisions the courts makes. There are countries where governments approve of every decision the court makes, but they are not places where one would want to live.
Campbell : Can we take a concrete example : your Belmarsh ruling, which struck down the capacity for indefinite detention. But the government response was and is a form of control orders which have the aspect of indefinite detention. A better formulation perhaps, but still one arguably, where the wrong has been perpetuated.
Bingham : The control order regime was very carefully designed, and complicated. I don’t know if you’ve, sort of, taken the trouble to explore it fully. But there are two forms of order that can be made. One, could only be made by the court. One could be made by the Secretary of State subject to review by the court. But the orders made by the court required a derogation from Article 5 of the European Convention guaranteeing the right to liberty. So far, no such order has been made. So we’re concerned – and have so far have been concerned only – with orders made by the Secretary of State. Which may not, deprive a person of his liberty. So there is a very difficult, quite vexed line between what does [deprive liberty] and what does not.
Campbell : So essentially, you’re still seeing this as a healthy tension – rather than as an end game tussle with a government that has authoritarian tendencies ?
Bingham : I very much react against any suggestion of a game. The Prime Minister himself Tony Blair, talked about the rules of the game changing. There’s no game. We’re dealing with very serious matters. And the control order regime says a person may not be deprived of his liberty. Everybody agrees if you have a curfew for 22 hours a day, and someone is confined to a one bedroom flat in a part of the country they haven’t known, for 22 hours, with limits on who they can meet or talk to or telephone etc etc etc then that is of course a deprivation of liberty. How much short of 22 hours a day involves a deprivation of liberty ? Different minds can take different views – as they did, when this question fell for a decision. But a majority held that 18 hours was too much.
Campbell : But leaving aside the metaphor that I used, would you still see this process as being a necessary and healthy struggle, to attain a viable solution ?
Bingham : Yes, I do. One has to remember that both the 2001 Act which was reviewed in the Belmarsh case and the later Act, which was reviewed in the control order case – were introduced by Ministers with an assurance to Parliament that they were compatible with the European Convention. That was the basis on which Parliament enacted them.
Campbell : Under international law, do you think the self defence argument can be stretched to allow for cross border action – if a host state is unwilling or unable to control the rogue forces operating from within its territory?
Bingham : Again, I would think that one would have to have the facts in a particular case in order to form a judgement.
Campbell : We have a looming situation of this sort, if we call the host state, Pakistan. Which apparently has forces operating within its borders that it is unwilling or unable to control, Does international law, under the rule of self defence, permit other countries to pursue forces across its borders, to eliminate the threat?
Bingham : I can’t answer that question. Its not one I’ve ever had occasion to research. Or consider in any depth at all. There is, as you will know, what is usually called the Caroline Doctrine, that says you can take action to avert an imminent and serious threat, before the other side has fired a shot. And the limits of the Caroline Doctrine are a matter of…( he shrugs)
Campbell : But other than the general principle of self defence there is no other sanction that allows for cross border action?
Bingham : I’m not alive to it. But I don’t want to be taken to be saying there isn’t. I’m just not up to date on it.
Campbell . Recently, you’ve said the war in Iraq lacked a proper UN mandate, and was therefore illegal under international law. In reply, [former UK attorney-general] Lord Goldsmith has argued in his own defence, that it was Iraq’s defiance of previous UN resolutions that rendered valid the use of force by the coalition of the willing. What’s wrong with that argument?
Bingham : I think everybody agreed that the question is one of authority. It wasn’t a case of self defence. It wasn’t a case of intervention to prevent an imminent humanitarian catastrophe. And under the UN Charter, force could properly be used only if it was authorised by the Security Council under article 42 of chapter 7 of the UN Charter.
Now, there are three UN resolutions that Lord Goldsmith, in his opinion analysed : resolution 678 adopted immediately after the invasion of Kuwait by Iraq, which authorized countries operating with the government of Kuwait to expel Iraq from Kuwait and maintain peace and security in the area. That lead of course to Operation Desert Storm and the expulsion of Saddam Hussein from Kuwait.
The next UN resolution was 687 – which suspended 678 and imposed a regime for inspection and compliance in various respects on Iraq. The third resolution was 1441 which was adopted unanimously in November 2002 – which found recorded that Saddam Hussein was in material breach of 678, offered him a final opportunity to comply – and held out the prospect that if he didn’t comply, he would continue to be in material breach and the use of force might be authorized.
Now, those who argue that it was authorized have to answer a series of questions. The first is : who was authorized ? The only authority that was relied on – resolution 678 – was the countries co-operating with the government of Kuwait . Those countries by 2003 were no longer the same coalition that existed in 1990 – and indeed, some of them as we know, were strongly opposed to the use of force in 2003.
The second question that has to be answered is : what were they authorized to do ? Again you have to go back to 678 and the answer has to be : they were authorized to expel Iraq from Kuwait. That had already been done. And maintain peace and security in the area. It requires quite an ambitious exercise of the imagination to suppose that a full scale invasion of Iraq was a way of maintaining peace and security in the area.
The third question that has to be decided is : when was the authority to use force ? When did it crystallize? It can’t have been on the adoption of 1441 because that gave him a final opportunity and therefore there wouldn’t have been an invasion the next day. So when between November 2002 and March 2003 did the authority to use come into effect?
And the fourth question – the most fundamental of all – who was to decide whether Saddam Hussein had taken advantage of the final opportunity which resolution 1441 had offered? The answer to my mind – but Jack Straw, the Foreign Secretary of the time and Lord Goldsmith strongly disagree – is that the decision was to be taken collectively by the Security Council. It was not open to any member [of the Security Council] or state of the 192 members of the United Nations to say well, we think Saddam Hussein is in material breach and therefore we can go to war. And Lord Goldsmith, in his earlier replies, recognized that it had to go back to the Security Council.
Campbell : Especially when the inspection authorities themselves were still in mid flight.
Bingham : Well, exactly. Hans Blix and his team of inspectors were making progress. They found no nuclear installations, they found no weapons of mass destruction, and they thought they needed around four months or so, to complete their task.
Campbell : I was interested in another dimension of your recent speech on Iraq. You cited the hotel receptionist Baha Mousa, who was beaten to death by British forces, and you said this wasn’t the result of deliberate government policy. Isn’t that somewhat naïve ? Because routinely, don’t governments and military commanders signal with a nod and wink what their subordinates are expected to achieve from interrogation – `and the outcome we’ve seen is that only the underlings get punished, while their superiors get promoted from Bagram to Abu Ghraib. Weren’t your statements on British interrogation on Iraq serving to condone this policy of plausible deniability at the top?
Bingham : I don’t think so. I mean, it was a completely lamentable episode for or which no one, so far as I know, has sought to make any excuses at all. But the point I was making was – that unlike various other abuses, such as the redefinition of torture and water-boarding and all that sort of thing, this was not an official policy taken at the top. You know, to get hold of some Iraqi and beat the daylights out of him. It was a whole lot of troops who lacked discipline, who perhaps lacked proper control – I don’t know enough about that. But I don’t think it is representative of any policy. It represented the sort of thing that happened, in a war zone when soldiers get their blood up. I would just interpolate, if I may, that Lord Goldsmith, who was the attorney-general was very strong and forthright, in saying this is intolerable. People must be brought to trial.
Campbell : But of course those at the top will say this is intolerable. That’s part of the plausibility deniability path they’ve set out on. Previously, residually, shouldn’t they bear some responsibility for the context they’ve created where it has been informally communicated that interrogators are to achieve results, means unspecified …but achieve them regardless?
Bingham : I’m not sure Bahu Mousa was being interrogated. I think he was just beaten up. The contrast that I’m drawing is between very, very high level memos in the Bush administration by lawyers at the very top of the tree. I have in mind one in particular that I quoted that said in effect ‘We think that we’re covered by our understanding about the Torture Convention – but if we’re wrong , no one can do anything about it at the International Court of Justice.’
Campbell : That’s quite an interesting trend in the legal profession isn’t it? The un-virtuous circle whereby politicians signal their intention, lawyers devise a rationale for it, and then politicians go out and cite the rationale as justification. That’s what happened with the John Yoo and Alberto Gonzales torture memos that you just mentioned.
Bingham : Yes. And I just don’t think you find any equivalent to that – so far as we know, the record isn’t complete – in the British operation.
Campbell : I’d like your views on the process called interdiction. The Refugee Convention says that people seeking asylum shouldn’t be penalised for using false documentation and Lord Simon Brown has been eloquent in supporting the relevant article 31. The trouble is, in order to lodge their claim for refugee protection, people have to set foot in the country. And New Zealand, among other countries, runs something we call the Advanced Passenger Processing System that detects people with false documents and stops them boarding the plane to get here to lodge a claim for protection.
So you’ve got a situation where our system frustrates one of the main mechanisms of a UN Treaty that many democratic countries have signed, that we support at the UN and that we have just written into our draft Immigration Bill. Do you think these practices of what are called interdiction are legal under international law?
Bingham : The Refugee Convention, as we both know, is quite old now and was negotiated and adopted in 1951. And it was expanded in 1977. But it was originally adopted in a very different world from that we now live in, and was very largely directed to people proceeding from one country to another across land frontiers. It was not directed in the main, towards people traveling from one side of the world to the other. Because that wasn’t a developed industry. I myself think there are now defects in the Refugee Convention, and it may well be that you’ve just put your finger on one of them. They might be refugees if they got there but if you can prevent them getting there, they might never become refugees.
Campbell : And the means of stopping them is something that we overtly say shouldn’t penalize them.
Bingham : As I read it, it bites once somebody is either in your territory or knocking at the frontier door. We had occasion to consider this in quite some detail in a case involving a sort of screening process at Prague airport.
Campbell : The one against the gypsies…
Bingham : Yes, the Queen against Prague airport, ex parte against the Roma Rights Centre. This was a scheme set up to try and head people off in Prague, when they were coming to the United Kingdom. And we concluded that the Convention as drafted, didn’t prohibit that. I mean, maybe it should. But an international convention can only be international, if modified.
Campbell : Do you think that diplomatic assurances [included in our draft Immigration Bill] whereby countries promise not to torture people deported to them, are worth the paper they’re written on?
Bingham : It must all depend. As you will know I’m sure, there is a Human Rights Committee decision in which Sweden had returned somebody to a country [Egypt] where they were liable to suffer torture. And Sweden was criticized by the Human Right Committee who said they knew perfectly well such and such a country did routinely torture, but they sent them off there all the same. I would have thought it would depend on the extent of verification after somebody is returned. If there is guarantee of very good consular access so that the person can be visited at regular intervals to make sure he is being properly treated, that would make me happier about accepting an assurance.
Campbell : So there would have to be a means of monitoring compliance, and a mechanism of enforceability ?
Bingham , Yes. I think the problem here is, a country that promises not to torture anybody we have detained, is most unlikely to admit they ever have tortured anybody. So its like an alcoholic saying, I’m a reformed alcoholic without ever admitting their alcoholism.
The mechanisms of security
Campbell : Your colleague Lord Simon Brown said in a recent Lords case that the right to a fair hearing is something too important to be sacrificed on the altar of terrorism control. Do you think the system of special advocates is compatible with the right to a fair hearing?
Bingham : I think it all depends on the particular case. There’s no doubt whatever that a special advocate CAN render invaluable service to the person whom he represents. He can listen to the evidence, he can criticize it, he can expose inconsistencies and there are reported examples where special advocates have done a very, very good job. I’m not discussing the quality of the particular advocate. I’m talking about the particular case. It may well depend in a way, on how much clue the individual has about the basis of the case against him. If, let us suppose hypothetically, he has absolutely no idea why he has been pulled in and is suspected, he can’t give any useful instruction to his special advocate.
Campbell : But it isn’t usually about having no idea at all. The nub of the matter of a fair hearing depends on whether the special advocate is able to talk face to face with their ‘client’ after seeing the secret evidence.
Bingham : Well, you can’t. Not without the leave of the court, and to my knowledge, the leave of the court has never been given.
Campbell : That’s the tension. The Parliamentary Committees in both Canada and Australia have said that this is a wrong that needs to be, and can be, righted.
Bingham : Sorry, what is a wrong ?
Campbell : The prohibition on talking face to face in a meaningful way, after the advocate has seen the secret evidence. In your own previous rulings you’ve said that this isn’t anything like a normal lawyer/client relationship. Both those parliamentary committees came down to saying the right to a fair hearing hinges on the ability of that communication to proceed. What are your thoughts on this?
Bingham : I think one has to approach it not as one of principle, but on the facts of the case – and then say to yourself, what was this man or woman told, what do they know about the reasons for their apprehension. Were the circumstances such that with the help of the special advocate, the hearing was fair ? And I don’t think otherwise than on a very particular basis, you can answer that question. I don’t think you can say it was fair because there was a special advocate or that it wasn’t fair, despite a special advocate.
Campbell : No, that’s not what I’m asking you. And this is where it really becomes a matter of principle, and not the particular. If the legislation forbids communication, and such communication is crucial to a full and fair hearing then you have to tackle it at a level of principle.
Bingham : If the trial or the hearing at the end of the day is not fair, then it doesn’t matter whether there has been a special advocate or not.
Campbell : Its not so much whether there is one who is operating under current rules. It is whether the rules under which they are operating are preventing them from providing their ‘client’ with a fair defence.
Bingham : I’m sorry to be difficult about this, but it will depend on the case. Suppose you get a case where the defendant, if you can call him that, and the special advocate have a meeting before there is any disclosure of secret evidence to the special advocate – and the defendant says : I haven’t been told anything about why I have been apprehended. But my strong belief is that the reason for my apprehension is such and such…and I think it very probable that the source of the information nation against me is so and so and he is actuated by malice, or is a former boyfriend of my sister, who chucked him out. And I think he is out to get me at any price…
If the special advocate is then shown the evidence and it bears out what the man, although he hadn’t been told, thought was probably the case. The special advocate will then be in a very good position to attack it, and will have in effect been instructed, even if those instructions were given on the basis of a hunch. But that may or may not be the case. And so I think is very much anecdotal so far as I am concerned. But in most cases, they don’t know.
Campbell : Yes, and I don’t wish to get bogged down on this either. But take that example you just gave me, about the aggrieved ex-boyfriend. Because there is the American case called Kieraldeen which came down to exactly that – but it took many, many hearings and a lot of stamina and good luck to glean that the secret evidence at the core of the case came from an aggrieved ex-spouse. Assume the special advocate is briefed as fully as the defendant can surmise about the relevant information – and suppose he subsequently finds it hinges on what happened on October 23, at a mosque.
The only way he can check if that evidence is correct or has an entirely innocent explanation is if he talks to the defendant best placed to corroborate, or to invalidate the evidence. Yet the UK statute – and it is repeated in the draft Immigration Bill passing through our Parliament at the moment – stops him from having that communication. And Parliamentary committees in the UK and Canada have said that situation has to be struck down. That’s why it has to be approached at the level of principle – because natural justice demands the situation be revisited.
Bingham : Well, I don’t want to be taken as expressing any view about draft, or prospective legislation in New Zealand.
Campbell : Which mirrors the British situation.
Bingham : Well, I’ve expressed views to you about the British legislation. I’m generally uneasy about the special advocate regime. Because I have worries about a relationship between a lawyer and quote, client, that is not characterized by the ordinary duty of candour, and full disclosure. So I’ve described it somewhere else as a relationship unknown [to the legal profession].
And so it is. But, I repeat : there are examples on record – Lord Woolf had a case, where he was very much struck by the efficacy in that particular case of the role of the special advocate. Some very excellent and conscientious people have performed this role –
Campbell . Many of whom have expressed their own misgivings about the job. One of whom likened it two blind men and a dog wandering around in the dark.
Bingham . And one of whom, as you will know – a highly regarded member of the Bar – resigned because he thought it a job that could not properly be done. The others have not resigned. No doubt, because whatever misgivings they have, they feel the person they represent is better off with their services than without them…
Sexism in the Judiciary
Campbell : Why do you think there are so few women judges?
Bingham : Where ?
Campbell : In Britain.
Bingham : Because there were very few women barristers at the time when those now approaching the age to become judges were qualifying. When I became a member of my chambers in 1959 there were no female members at all. Not because we had any kind of rule that there wouldn’t have been, but we simply wouldn’t get well qualified applicants. It is changing. Very,very quickly and radically. I’ve no doubt there will be as many women [judges] as men in the foreseeable future.
Campbell . As Helena Kennedy has pointed out, there is no shortage of female lawyers. The choke point, she would argue, is that the old boys network cuts them off from becoming QCs, and from there to the bench. Is that where the pressure needs to be applied?
Bingham : All I can say from personal experience – and I’ve had in various capacities, a good deal to do with this over the last 15 years – the Lord Chancellors with whom I’ve dealt, have been anxious to appoint women and members of ethnic minority groups.
To the extent that given two candidates of approximately equal merit, and one is a woman and one is a man – the woman would be preferred. And the member of the ethnic minority group would similarly be preferred. But you can’t appoint people who don’t apply, or make themselves available. As I say, there used to be very few women at the Bar, and it has got an analogy with other professions. Women in large numbers have become doctors for a very long period, but you don’t find many orthopaedic surgeons who are women.
Campbell : True, but the problem seems particularly acute in the legal profession. That sense of the old boys informal network being incredibly…unreconstructed.
Bingham : I don’t actually think that’s true Again, the Lord Chancellors I have had dealings with – in the days they dealt with applications for Queens Counsel – they’ve taken immense pains to pick women. And they would devote huge amounts of time to consider these applications, and went into them with very, very great care. And did it on the basis of perceived merit, and they were not male chauvinist old boys. The Lord Chancellors I dealt with like Lord Mackay, who was to some extent an outsider because he was a Scotsman and didn’t grow up in the English legal system at all…and Lord Irvine, a very different personality but also a Scotsman, and a meritocrat. And he sought of said – for
goodness sake, apply !
Campbell : Looking at your retirement plans…. In the post 9/11 world, NGOs like Liberty and Justice have played a useful role in fostering debate about where the balance should be struck between national security and individual rights. Your colleague Lord Steyn, since his retirement, has gone to work for Justice. Does that sort of NGO work in retirement, appeal to you?
Bingham : I think he [Steyn] has ceased to. But he did, you’re right. I have become president or chairman – I’ve forgotten the title of the body – of Reprieve. It’s a charity started by Clive Stafford-Smith who though I think half English, is a very well qualified American lawyer who has devoted himself to trying to secure due process for people confined on Death Row up and down the United States – and particularly in the southern states. And he has more recently devoted himself to secure release for people from Guantanamo. So I have become associated with that. I have also been doing some sort of work associated with a body concerned about the deficiencies of the penal system.
Campbell : Finally, are you optimistic the rule of law can survive the post 9/11 onslaught on civil liberties?
Bingham : Yes. Because I think it is a deeply rooted and very widely shared set of principles. There are lots of things that divide people : race, religion, nationality. But I think the rule of law commands very wide acceptance – not, of course universal acceptance, but it is one of the great unifying factors. And the United Nations has made it absolutely plain that it regards adherence to the rule of law as being central to its mission.