标题: Lord Bingham of Cornhill obituary [打印本页] 作者: duijinxiaozi 时间: 2010-9-23 04:30:42 标题: Lord Bingham of Cornhill obituary
Lord Bingham of Cornhill obituary
[size=1.333em]The greatest judge of his era, he argued that judicial independence is essential to the defence of human rights
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[size=1.333em]Tom Bingham, who has died aged 76 of lung cancer, was widely recognised as the greatest English judge since the second world war. Serving at the apex of the judiciary for an unusually long span, he was the first individual in the modern era to act both as master of the rolls, with the supreme remit for the civil courts for four years from 1992, and then as lord chief justice, running the criminal courts as Britain's highest-ranking judge. From 2000 until his retirement in 2008 he was the senior law lord.
In that role, he wrote a number of leading judgments, defining the place of individual rights in the landscape of a changing British constitution, melding the relationship between long-established principles of common law with the more recent obligations of European and international laws. His lectures and writings, and in particular his last book, The Rule of Law, published at the start of this year, are treated as seminal texts.
He was also to the fore in promoting a strong, independent judiciary. At a time of growing executive power and a diminishing influence for parliament, and in particular following the terror attacks of 9/11 in New York and 7 and 21 July 2005 in London, the Labour government adopted an increasingly authoritarian approach. This included the power to detain certain foreign nationals indefinitely without charge, and the right to use evidence that may have been obtained by torture in certain legal proceedings. The government also argued for a strong role for the executive, with which the judiciary should not interfere.
In two seminal decisions, in 2004 and 2005 in the two cases of A & Others v Secretary of State for the Home Department, Tom wrote leading judgments rejecting the government's arguments. In so doing, he advanced the rights of all individuals, while recognising the reality of the threat presented by certain forms of terrorism. He rejected – with characteristic firmness, clarity and authority – the government's approach to the judiciary. "The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself," he wrote in 2004. While the attorney general, on behalf of the government, was entitled to insist on the proper limits of judicial authority, he was "wrong to stigmatise judicial decision-making as in some way undemocratic".
The following year, he concluded that the "principles of the common law … compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles that should animate a tribunal seeking to administer justice". These principles did not stand alone, and effect also had to be given to the European Convention on Human Rights, which took account of the consensus embodied in the 1984 Convention Against Torture. "The answer to the central question posed at the outset," he wrote, referring to the admissibility of evidence that may have been obtained by torture, "is to be found not in a governmental policy, which may change, but in law." This judgment resonated around the world, a considerable influence against the will of certain governments to unshackle themselves from the constraints of human rights norms put in place after the second world war.
Born in London, Tom was brought up in Reigate, Surrey, the son of two doctors. His father was an Ulster Presbyterian, an influence that may have accounted for a streak of austerity in the son, though he was later, as he said, a "middle-of-the-road Anglican". He went to Sedbergh, a Cumbrian boarding school with a spartan regime, where he was said to be the brightest boy in a hundred years. He did his national service as a second lieutenant in the Royal Ulster Rifles (1952-54), which he found a "liberating experience", warming to a code of discipline and loyalty. He stayed in touch with that world for a further five years through Territorial Army service in the London Irish Rifles. These early influences could be felt throughout his career.
Attracted by Christopher Hill, the Marxist historian of 17th-century England, he went to Balliol College, Oxford, to read history, where he gained a first in 1957 and took part in college debating. Friends included two historians, Robert Rhodes James – eventually a knighted Tory MP – from Sedbergh, and the military writer John Keegan, another eventual knight, from Balliol. A passion for historical context suffused Tom's judgments and persisted in a lifelong interest in history, alongside his love of Samuel Johnson.
He opted for the bar and quickly belied his mother's opposition by coming top of bar finals in 1959, having won law prizes from both Oxford and Gray's Inn. He joined a commercial chambers headed by Leslie Scarman and quickly earned the Medical Defence Union, the doctors' insurance firm, and the Ministry of Labour as clients. Lord Denningsingled him and his frequent sparring partner, Patrick Neill, out as the two foremost advocates of their time. Sir Louis Blom-Cooper QC reckoned that he had an "alpha-plus mind". He gained a reputation for dexterity in cross-examination and for calmly and meticulously building up an argument that was original, but immovable. From the earliest days, logic and clarity were characteristic features of his arguments, and these would later inform his judicial pronouncements.
In 1972, Tom took silk at the early age of 38. He had already been standing junior counsel to the Department of Employment for four years from 1968, and was also a standing counsel at the Bank of England.
In 1975, he was made a recorder of the supreme court, and in 1980 he became a high court judge in the Queen's bench division and a judge of the commercial court. He was still only in his early 40s when, in 1977, he was asked to look at sanctions-busting by oil companies in Southern Rhodesia after the colony had declared itself independent as Rhodesia. His report brought his name to a wider public, and found that oil companies had knowingly flouted the sanctions regime with the complicity of civil servants. No prosecutions followed.
In 1986 he was elevated to the court of appeal, and soon became the first judge to welcome Lord Mackay's plan in 1989 for a right of audience for solicitors in the high court. In 1991-92 he investigated the controversial collapse of BCCI (the Bank of Credit and Commerce International), but focused strongly on the supervisory role of Bank of England, which he criticised for not intervening earlier, though exonerating the Treasury. Some of his findings were left out by the government in the published version. As a result of the report, auditors were obliged to hand over evidence of malpractice found in their scrutiny.
In 1992, Tom succeeded Lord Donaldson as master of the rolls. At the time he was thought to be a moderately conservative, if modern-minded choice, as compared with the more reform-inclined Harry Woolf. He said on being appointed that "the scope for radical innovation is probably limited". Yet he initiated numerous significant reforms, including a move towards the replacement of certain oral hearings by more paperwork in major civil cases. He was the first senior judge to back incorporation into English law of the European Convention on Human Rights, and he favoured the legalisation of cannabis: "It's stupid," he said in an interview in the Spectator, "having a law which isn't doing what it's there for." Later he became a powerful advocate for the removal of the judicial branch of the House of Lords from parliament, with the creation of a supreme court of the UK, achieved with the Constitutional Reform Act 2005. The supreme court began to function only in October 2009, after his retirement, and while he slightly regretted not becoming its first president, Tom was delighted by its arrival.
As a judge he was ferociously independent, ruling against the government in several high-profile judicial review cases, including the Malaysian Pergau Dam case in 1994, when he found against the arms-for-aid deal put together by the former foreign secretary, Douglas Hurd. In doing so he recognised the standing of a non-governmental organisation, the World Development Movement, to bring the challenge. In 1996, despite Tom's limited experience of the criminal law, Mackay selected him to be lord chief justice, and he became a peer, Baron Bingham of Cornhill, of Boughrood in the county of Powys, where he and his wife, Elizabeth, spent many happy times at their cottage, with children, grandchildren and friends. More than one serving judge has told me that they considered him to be "the greatest lord chief ever".
In his new post, his reforming streak was unrestrained. He pressed Jack Straw, home secretary in the new Labour government of 1997, to abolish the mandatory life term for murder and the key role for the home secretary in deciding release. With Harry Woolf, now Lord Woolf, as master of the rolls, he argued for safe accommodation for released paedophiles to make reoffending less likely and to protect them from being hounded.
Presiding over the country's highest court, he oversaw a string of ground-breaking judgments in various fields of law. Appearing before a court with Tom at its head was always a formidable experience, notwithstanding his consistent good humour: he combined a unique intellectual agility with a deep commitment to due process and fairness, as well as flashes of dry humour and wit, but never hesitated to let a barrister know when it was time to move on.
It was the seminal judgments on individual rights and the rule of law, among others, that established Tom's reputation as the greatest judge of his time, defining the rule of law in challenging circumstances. In 2006 he delivered a lecture, The Rule of Law, at Cambridge University, explaining his conception of its eight core principles, and breaking new ground by situating the concept in an international framework. The lecture was expanded into the book of the same title, giving him a global audience, beyond the lawyers. It received widespread attention and many positive reviews, including one from Lord (Chris) Patten, who pipped him in his efforts to be elected chancellor of Oxford University in 2003. Reviewing the book in the Financial Times, Patten noted the "clarity of the arguments, the sometimes caustic precision of the observations, and the pellucid quality of the prose", and praised Tom for the "effortlessly magisterial" way of the book.
Following his retirement, Tom did not take the easy road. He gave a series of high-profile lectures on issues of the day, addressing early on the 2003 Iraq war, an action that he considered to be "a serious violation of international law". This was, he later told me, one of the very few matters on which he was "entirely free from legal doubt", and it formed the subject of a number of particularly authoritative and trenchant pages in his final book.
Appointed a knight of the garter in 2005, he was an active president of the British Institute of International and Comparative Law, and was delighted by the foundation this year of its Bingham Centre for the Rule of Law. He served as chairman of the UK charity Reprieve, using the law to enforce the human rights of prisoners, and continued to take an active role every spring at the Guardian Hay festival, of which he was president, often to be seen, after some great luminary had delivered a pulsating lecture, standing in the rain and mud outside a marquee, bucket in hand, raising funds for the charity SOS Sahel, supporting herders and farmers in the African drylands south of the Sahara, in which Elizabeth was keenly involved.
Although politics was always a subject of lively debate in the Bingham household, he was always careful to avoid public comment. Elizabeth stood for the SDP in council elections and campaigned for the Liberal Democrats, but he said that she was further to the Anglican right than he was. Rhodes James once said that he would be surprised to discover that Tom was a Tory voter, although Tom was personally delighted by the success of his son-in-law, Jesse Norman, in being elected Conservative MP for Herefordshire South in this year's general election. His family was a source of the greatest happiness and pride, and he was invariably surrounded by a posse of friends.
Debate, laughter, singing, warmth and irreverence, up to a point, were the characteristics of his household. He is survived by Elizabeth, whom he married in 1963, by his daughter, Kate, his sons, Harry and Kit, and six grandchildren.
Louis Blom-Cooper writes: It is no exaggeration to say that Tom Bingham was the greatest judge of our time – arguably, the most significant judicial figure among the long line of notables in the history of the Anglo-Saxon legal systems. It is not just that his judicial output during an outstanding first decade of the 21st century (and the crucial last decade of the judicial House of Lords) will undoubtedly prove to be of lasting value. Over two decades – uniquely in succession as master of the rolls, lord chief justice and senior law lord – he fashioned a modern jurisprudence and displayed a juristic talent both in and out of the courtroom. He was par excellence a jurist, displaying a philosophical basis to his judgments and extra-judicial writings. His book The Rule of Law was a hugely important exposition of a phrase much overused in legal language, but little understood beyond its professional and constitutional rhetoric.
As a judge, Tom exhibited modestly an outstanding intellect, always courteously quick-witted in courtroom dialogue, as well as sure-footed in judgment, elegantly expressed, often tinged with apt historical analysis and rooted in irrefutable ratiocination. Everything he did and said was magisterial. He had all the judicial qualities and judicial mien, wholly in accordance with the highest standards of judicial service and attuned to the social and political demands made upon judges and lawyers in a civilised democracy.
When Tom was appointed lord chief justice, criminal law practitioners were disdainful about the appointment of someone who had little experience of the criminal courts, or even familiarity with the criminal jurisdiction. But, within a short time, the criminal bar could not – and did not – forebear to cheer Tom's evident aptitude to the demands of criminal justice.
His legal talents were made evident to government in two outstanding public inquiries, which he conducted and reported on single-handedly and in private session – the investigation into the supply of oil to Rhodesia during the Unilateral Declaration of Independence, when he was still practising as a QC at the bar, and the inquiry into the supervision of the Gulf bank BCCI, when he was only a judge in the court of appeal.
Martin Kettle writes: Judges are properly wary of journalists, and journalists ought to respect that caution. But judges do nevertheless read the papers and, in Tom and Elizabeth Bingham's case, that meant reading the Guardian. When I wrote in my Guardian column in 2006 that, in my view, the two frontrunners for the title of Greatest Living Englishman should be David Attenborough and Lord Bingham, it was, perhaps not surprisingly, something of an icebreaker. An all too brief social relationship and friendship followed. A suggestion in another column that his 2006 Sir David Williams lecture on the rule of law was an immensely important public intervention played a part in encouraging Tom to extend it into the marvellous and exemplary book of the same title.
He was extremely interested in politics, but primarily from the perspective of internationalist liberal good governance, rather than from any partisan standpoint. This lay behind his 2008 Grotius lecture, in which he criticised the legality of the Iraq war – the judgment he would have given had he still been on the bench. Tom always, however, enjoyed a good political gossip. When I met him at a British Museum event in the last months of the Brown premiership, his view was emphatic: "The country needs a new government." On this, as on so much else, he was, of course, right.
Tom well understood his own worth, but wore his eminence modestly and with dry wit. It amused him when people assumed that Lord Bingham of Cornhill referred to the City of London rather than the tiny mid-Wales hamlet where he spent as much time as he could. No other senior judge in modern times has been made a knight of the garter, but Tom hung the framed citation outside the bathroom door of that Welsh house where he died. Lung cancer – he never smoked a cigarette in his life – took him far too soon. No longer the greatest living Englishman, alas, but one of the greatest men of our time all the same.
Henry Porter writes: Freed from the constraints that went with being Britain's first senior law lord, Tom Bingham was able to be more open in public about the deep commitment to liberty and rights that had informed so many of his judgments, notably those concerning the internment of foreign terror suspects at Belmarsh prison, south-east London, and the use of information gained by torture. During the campaign against the last government's attack on liberty, he offered much encouragement and advice, twice taking me aside at the Hay festival to explain his concerns about the delicate relationship between the executive and judiciary as well as the benefits of the Human Rights Act.
He was among the first big names to agree to speak at the Convention on Modern Liberty in 2009, where he said: "The possession of great powers by the state is not a reason for using them – rather (it) should 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 liberty and privacy of the individual is fully justified by an obviously superior community interest." He was concerned that with the "war on terror", government ministers were in danger of losing a basic respect for the idea that liberty is Britain's "direct end and foundation"; and this fear inspired his important study, The Rule of Law.
Tom was a great man whose humanity was as much evident in his good manners and treatment of his opponents as it is in the huge body of important judgments. But this respectfulness never inhibited a wonderfully elegant mind, and few of those who saw him argue about a written constitution with a famous television historian over dinner at Hay will forget him leaning back in his chair and engaging that terrifying mental agility. It was like watching an expert knife thrower. He will be greatly missed, for he held the line on the most important principles of law at a critical moment in our history.
• Thomas Henry Bingham, Baron Bingham of Cornhill, jurist and judge, born 13 October 1933; died 11 September 2010
作者: 阿泰 时间: 2010-9-23 14:04:32
求abstract作者: duijinxiaozi 时间: 2010-9-23 20:11:23
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阿泰 发表于 2010-9-23 14:04
Tom Bingham (Baron Bingham of Cornhill), defender of liberty, died on September 11th, aged 76.
