TUESDAY 17 MARCH 1998

THE RT. HON. LORD BINGHAM OF CORNHILL

  140. And the Lord Chancellor's actually.

  (Lord Bingham of Cornhill) Our position is and has always been that no-one has ever been able to suggest that there has ever been a vestige of evidence that any judge in any case ever in this country has been perverted from his duty by any conflict arising from any freemasonic association.

  141. That rather steps aside from the allegation, does it not? The allegation is that one of the reasons why the upper judiciary is dominated by middle to upper class white males is because many of them, if they do not go to the same schools and universities, also belong to some of the same clubs. It is the appointments system it is suggested is open to influence in this way, not the quality of the justice.

  (Lord Bingham of Cornhill) It simply cannot be. I am not hoping to persuade you but it simply cannot be. Nobody sitting round the table when these discussions take place has the slightest idea whether somebody is a freemason or not.

  142. No, but if you are asked under your system of soundings to say whether so and so is a good chap, the system really is open not to conscious manipulation but because you have mixed with someone all your life on a social basis to say so and so is a good chap and as a result you end up with a judiciary which looks the same throughout all time despite the efforts of all comers to try to broaden its base.

  (Lord Bingham of Cornhill) The figures which are known make it plain that freemasons among the higher judiciary are very rare birds indeed. None in the House of Lords, one in the Court of Appeal, two out of 96 High Court judges.

  143. What is there to lose by transparency? The problem will melt away as soon as you are transparent, will it not?

  (Lord Bingham of Cornhill) It may do.

  144. There is a lot of unjustified paranoia. Everyone accepts that and there could be no clearer way of demonstrating it.

  (Lord Bingham of Cornhill) I do not want to make any accusations of paranoia. I frankly do not recognise the possibility of the problem so far as judges are concerned. They take a judicial oath, they take that very seriously, the incidence of freemasonic membership is minute.

  145. Not in the north east as it happens. Have a look at the judges in the north east.

  (Lord Bingham of Cornhill) I was talking about the High Court Bench and above; that is all I was talking about.

  146. Yes; that is true.

  (Lord Bingham of Cornhill) That is what you were talking about in terms of appointments.

  147. You have not really answered my question, with the greatest respect. Whether you take that as a compliment or not, I do not know, but you have given us a politician's reply. My question was: would you be in favour of the judges declaring their membership of the freemasons as advised by the Home Secretary?

  (Lord Bingham of Cornhill) In the absence of any invitation by the Home Secretary, no, I should not. In the absence of any reason to make one's private associations public, one should be entitled to keep them private. If the Home Secretary indicates that he is anxious for this to happen then that is an invitation which we shall obviously take seriously.

  148. He has indicated, has he not?

  (Lord Bingham of Cornhill) Yes, and that is what the judges will be considering at this forthcoming meeting.

  149. I am a little disappointed because I should have thought you would take a somewhat different attitude. Obviously we are not in complete agreement in this Committee and there is no reason why we should be on such a controversial subject. I should have thought you would have tried to persuade the judges to declare membership because if there are any lingering suspicions I agree there could well be paranoia over some aspects of freemasonry. I should not deny that. We get letters from people who claim they have been persecuted by freemasons. No-one is surprised by those sort of allegations. If there is a lingering suspicion, much of which has been touched upon in some of the Chairman's questions, I should have thought the best way to overcome such suspicion was by declaring membership.

  (Lord Bingham of Cornhill) I have given no indication as to what advice I shall give to the judges. What I have indicated is that it will be discussed at the Judges' Council in a matter of a few days and I cannot predict what the outcome will be although I have a fairly shrewd idea.

  Mr Winnick: Yes, I think you have indicated that.

  150. May I make clear that the Lord Chancellor has signed up to these proposals as well? I noted you laughed at the concept but his signature can be found on a bit of paper.

  (Lord Bingham of Cornhill) Yes, I do know he has given his support to them.

  151. The reputation of potential appointees to the High Court Bench is now becoming more and more public because these things are discussed in the specialist legal press. Now, even though some of the surveys are not especially satisfactory, publications like Legal Business have polls of the leading barristers in the commercial area or in the personal injury area or whatever. This has become much more public than it was in the past and it is fairly easy to predict if they wanted who might well be appointed to the High Court in the next five years or so. Obviously members of this Committee do not all read the specialist legal press but if they did, it is a much more open process than sometimes people understand.

  (Lord Bingham of Cornhill) Yes, the consultation is very wide. There are very few surprises.

  152. In the context of the incorporation of the European Convention on Human Rights into British law the spectres have been raised by some commentators that it would firstly lead to an increase in the power of the judiciary at the expense of Parliament because it is able to rule on whether bills are compliant or not and could secondly lead to a politicisation of the judiciary. In the debate on the Human Rights Bill in the House of Lords you refuted those suggestions and welcomed the Bill. Could you clarify for us now a little on why you feel the Bill will not lead to those dire consequences?

  (Lord Bingham of Cornhill) Yes. I should perfectly well understand if the United Kingdom were to decide that these questions were not to be decided by judges at all. The fact is that under the Convention they are now decided by judges. The difference is that they are not decided by British judges because we are not enabled to pay, subject to some minor qualifications, any attention to the Convention. It goes off to Strasbourg and the judges there decide the questions. I do not think it is a transfer of power from parliament to the judges. The device which the Act has employed, if the court is confronted with an irreconcilable inconsistency between primary legislation and the Convention, is a neat and deferential one which preserves the sovereignty of parliament and that had the very full support of the judges. I simply do not accept that it involved any transfer of power. What it does—and I think this was the title of the consultation paper or the White Paper—is brings rights home. It enables us to give effect to these rights which the United Kingdom guaranteed to its citizens in 1951. So far as the politicisation point is concerned, this has not happened anywhere else. Everywhere else, with the exception of Ireland and Norway, has given effect to the Convention and we do not find the judges immersed in political controversy in these other countries and we will not find the judges here. If one looks at the Convention and looks at the rights which are in issue. They are very, very basic: a right of free speech, a right of free religion, right of free association, right not to be subjected to cruel and unnatural punishment, a right not to be subjected to servitude, etcetera. These are, as the title of the thing says, fundamental human rights and freedoms. I just do not entertain this fear. I can well understand people not wanting this to happen and it is certainly the last thing I should wish to happen but I do not think it will.

  153. You could see no mechanism whereby there will be any interest in a politician trying to get certain people into the judiciary who would rule in a certain way. That is just not a feasible prospect in your view.

  (Lord Bingham of Cornhill) No. Our tradition is very, very firmly entrenched that to the best of our ability we decide cases on the merits of a particular case. We do not ask ourselves whether we are a strict constructionist or a civil libertarian and what would a strict constructionist or a civil libertarian decide in this particular case. We simply take the less ambitious way and decide what we think is the right answer. It is partly because it would be fatal for judges to start looking at their records and seeing what was consistent with their record and what would look inconsistent. I should be dead against any kind of senate hearing when you would be asked to explain a decision in such and such a case, to which the honest answer would be, that was how it grabbed me.

  154. The other issue which raised major concerns was the issue of the right to privacy and spectres were raised over that. You in your speech quite accurately pointed out there is also a right to freedom of expression and the judiciary's job would be to balance the two, freedom of expression versus privacy.

  (Lord Bingham of Cornhill) Yes.

  155. Do you think on balance with the ECHR incorporated that there would develop a general ability to seek protection on the grounds of privacy that is not currently there in British law?

  (Lord Bingham of Cornhill) We have first of all to remember that the Convention, understandably given its origins, is an instrument to protect citizens against an oppressive state. It is really restraining state authorities from treating its subjects in various ways. Therefore one is primarily looking at restrictions on privacy by governments. Fourteen violations have been found against the United Kingdom since 1966 under article 8 and none of them involves the press in any way at all. They involve unlawful searches of prisoners' correspondence, overhearing prisoners' consultations with their lawyers, interference with the rights of homosexuals, that sort of thing. I think that it is to be expected that there will be cases between citizen and citizen in which complaints will be made of breach of privacy. In recognition of the value which society has put on this by enacting the Convention into British law, the courts will take this as a value to be respected and protected, as to a considerable but incomplete extent they already have done. I do not see any risk that this is going to encroach on right to free expression or muzzle investigative journalism or prevent newspapers publishing matters of genuine public interest. There is a domain in people's lives which is private and which is of no legitimate interest to the public at all. I think and Strasbourg jurisprudence indicates that where there is a tension between these two then article 10 is the trump. If there is a conflict between the privacy of the individual and the right of the media to publish material of public interest, then the publication will go ahead. I hope that answers your question.

  156. The answer is that you do not know. You cannot tell us, nor can you tell the press, nor can you tell the people of Britain with any certainty that the article which deals with freedom of expression shall prevail. You made clear as much in your speech in the House.

  (Lord Bingham of Cornhill) I can to this extent, that we are obliged to take account of the jurisprudence in Strasbourg under the Bill and the jurisprudence in Strasbourg gives priority in the case of competition to the right of free speech under article 10. That will be our guidance. It would also, I have to say, be our very strong instinct.

  157. Surely if we are going to have a privacy law in this country—and this is only one issue upon which this Convention touches—would you not agree that we as politicians should make that law rather than leave it to you, the judges, to decide?

  (Lord Bingham of Cornhill) In May 1996 I gave a lecture entitled: Should there be a Law of Personal Privacy? I ended up by saying that I thought the ideal solution would be a law passed by parliament which would have the imprimatur of democratic approval. Earlier in the same lecture I was advocating incorporation, which I have done repeatedly over the years, as a means of achieving a desirable end. I still think incorporation will give proper and in no way dangerous protection to privacy but if parliament wish to enact a law on the subject it would not worry me or frighten me.

  158. I do not wish Parliament to incorporate the Convention into English law. May I put this question to you? Do you believe in the separation of powers? How do you understand the meaning of the separation of powers?

  (Lord Bingham of Cornhill) That is a very far reaching question. In this country we do not have a constitution which acknowledges separation of powers to anything approaching a complete extent. You could not really get a more dramatic merging of powers than the members of the executive sitting in the House of Commons, which would be unthinkable in American terms. There are certain separations in our constitution which I think are important and which I should wish to preserve.

  159. There are some of us who are concerned—and I am one of them; I make no bones about it—who are deeply and profoundly concerned that this legislation is going to transfer power to the judges. As Lord Mayhew, by no means an intemperate man, indicated in your House, he feels that it is going to politicise the judges on whom there has been no taint of politicisation up until now. I do not doubt that you will be well motivated but how do you think new people coming to the Bench are going to behave, knowing that they will have the power, a hugely increased power, of interpretation? Are they not going to be inclined to use it?

  (Lord Bingham of Cornhill) I heard my old friend Lord Mayhew make these points; he has made them to me in a private conversation. Much as I like and respect him, I simply do not agree with him on this issue. You are drawing me into a highly political discussion. I view these matters as a judge. Speaking as a judge, I do not think the dangers which are apprehended will occur. I do not believe the judiciary will be politicised and our tradition of political colour blindness is so deeply entrenched that we shall continue to observe it with scrupulous and meticulous care.