Until then the chair had been taken as of right by the longest-serving Law Lord. The new post came inevitably as a slight to Gordon Slynn, a judge of undoubted ability who would otherwise have filled the slot; but it was an inspired move. It placed in charge of what has become our constitutional court a jurist of massive intellectual competence with a deeply principled understanding of civil and human rights.
In this role (unlike his predecessor Lord Diplock, who had led largely by intellectual intimidation) Bingham led by courtesy and by example. He listened to everybody’s view and treated all with equal attention. I was once at an appellate lawyers’ conference in Chicago where Lord Cooke of Thorndon, who had sat on numerous courts in different parts of the world, was asked who would be on his ideal court. “I won’t name them all,” he said, “but I can tell you that Tom Bingham would be in the chair.”
On one level, Tom Bingham’s path ran straight down the middle of the road: a moderate Anglican, a cultivated historian, a respecter of tradition, a black letter jurist, a scholar of the common law. There was no need to look beyond these characteristics in order to understand either his refusal to accept the erosion of individual liberty by authoritarian legislation, most notably but not only in the Belmarsh case, or his terse, passionate and principled dissent in favour of the right of return of the Chagos Islanders. On another level he had a streak of heterodoxy, remarking that consistency in a judge was a positive vice and that it was stupid to have laws about cannabis that didn’t work. On yet another level, however – though it became apparent only after his retirement – he had, or possibly developed, a strong radical streak. It may have owed something to his having read history at Balliol under the Marxist historian Christopher Hill, whom he continued to regard highly. But wherever it came from, it led him, when he was finally free to do so, to denounce the invasion of Iraq, in a devastating critique in a major public lecture, as illegal.
A strategic sense of the law’s policy
None of these reflections on Bingham’s personality, however, sufficiently explains his strategic sense of the law’s policy and the subtlety with which he steered it. These were the product of intellectual qualities of a rare kind. One of the many cases to display them was Daly, a prisoners’ rights case heard by the Lords, with Tom in the chair, on the cusp of the coming into force of the Human Rights Act 1998. Instead of relegating the case to a common law limbo, Tom led the House in bringing the common law into line with the Convention and applying it both pragmatically and creatively to a problem which, not long before, would have been regarded as a matter of management and discipline with which the courts had no concern.
Tom’s courtesy never failed. He was never short with even the most tiresome litigant or advocate. It was entirely unsurprising
to find him at the village show in Boughrood, or at the Hay Festival holding a collection bucket for SoS Sahel, the charity for which his wife Elizabeth worked untiringly.
Authority was probably the role he found most awkward. A close friend of his said to me that Tom always seemed surprised at the promotions and honours that came his way. As Lord Chief Justice he came out on Circuit occasionally to recover the feel of first-instance work. On one of his visits to Newcastle the gaoler unlocked one of the grim cells under the Shire Hall and said to the luckless burglar in it: “Oot ye come, bonny lad, ye’re up afore the Lord Chief Justice”. The man nearly died of fright: he thought he was going to be hanged. He couldn’t have been more wrong – far from setting out to make an example, Tom sentenced minimally and by the book. It was under his presidency that the Privy Council developed a humanitarian majority which was able, without violating the islands’ constitutional provisions, to roll back the use of the gallows in the Caribbean.
Life after retirement
The tragedy of Tom Bingham’s death at the relatively early age of 76 – and the irony that it should have been by lung cancer when Tom had never smoked – is accentuated by his productivity in the short period that had elapsed since his retirement. In addition to the lecture on the Iraq war, he had proposed a wholesale reform of the House of Lords, shrinking it to an expert revising chamber without formal legislative powers. He had produced a short but remarkable book on the rule of law which is likely to be required student and practitioner reading for many years to come. And he had delivered the 2009 Hamlyn Lectures on the interaction of English law with external sources and systems. The seminar which followed publication of these in June 2010 was both an inspiring and a sombre moment: inspiring because of the breadth and depth of the lectures; sombre because Tom had e-mailed to say that his batteries were running down, and he could not be there.
His death only three months later was a bad blow not only for the legal profession but, much more acutely, for Elizabeth, without whom it has never been possible to think of Tom, and for his children and grandchildren. They, like us, have lost a uniquely kind and decent companion whose modesty was as great as his gifts.
Lord Justice Sedley is a Court of Appeal judge and is President of the British Institute of Human Rights