BY GENERAL agreement, he was the greatest English judge since the second world war: the only man in the modern age to be, in short order, Master of the Rolls, Lord Chief Justice (head of the judiciary in England and Wales) and senior law lord in the House of Lords. But to himself, as he strode out at weekends across the brooding hills of the Welsh borders, Tom Bingham was just a small, jobbing figure adding another grey stone or two to the ancient, intricate web of walls known as English common law. As a passionate historian, his subject at Balliol, he liked to put himself in a procession of judicial folk: 12th-century judges touring the shires to set up the royal writ, 17th-century lawyers wrestling over the rights of king and Parliament. But the most interesting era of all, he thought, for a judge devoted to defending liberty, was the age he lived and worked in.
His years at the apex of English justice involved coping with a government that tended, in the name of national security, to take the law into its own hands. But the rule of law was Tom Bingham’s speciality. A centre for the study of it, named after him, opens next month. However loosely others defined it, for him its core was this: “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made…and publicly administered in the courts.”
This meant not only that citizens should be spared the midnight knock on the door, the show trial and the gas chamber, but also that the nine foreign men held at Belmarsh prison in London, kept there indefinitely by the Home Office on suspicion of terrorism and with no prospect of a trial, had been detained illegally. This ruling, in 2004, stunned the government. In 2005 came another Bingham bombshell: evidence obtained by torture, no matter what the pretext, was unreliable, offensive and inadmissible in court. It was clear to him too that the invasion of Iraq, based on no hard evidence of Saddam’s evil intent and unauthorised by the Security Council acting collectively, was a serious breach of international law; but his opinion was neither sought, nor volunteered, at the time.
After the Belmarsh ruling, the Guardian cried that he was “a radical…leading a new English revolution”. Lord Bingham didn’t dislike that; it raised one of his wry smiles; but nor did he think it “at all apt”. He was politically neutral, as judges had to be. He did not consider himself at odds with the Blair government; it had achieved one of the things he had fought hardest for, the incorporation into English law in the 1998 Human Rights Act of the European Convention on Human Rights. But his very passion for those rights brought him bounding to their defence at any sign of erosion: rumours of torture, arrests of hecklers, carelessness for habeas corpus. Vigilance was vital.
It was necessary, too, to keep judges independent. He mused on how constrained they were: unable to initiate or annul anything, and subject to the sovereignty of Parliament. But he did pretty well, considering. At the head of public inquiries, he delivered stinging verdicts against oil companies and compliant civil servants for contravening sanctions on Rhodesia, and against the “deficient” Bank of England for failing to foresee the collapse of the Bank of Credit and Commerce International. Only once did he disappoint liberals, when in 2008 the law lords ruled that the Serious Fraud Office was right, in view of Saudi threats, to ditch its inquiry into BAE Systems’ arms sales to Saudi Arabia.
At the Bar he was a fine judge, dexterous in argument and scrupulously fair in his rulings. He became a QC at 38, and was made Lord Chief Justice, exceptionally, when his background was in commercial rather than criminal law. All through his career he was curious about, and open to, other legal systems. He relished the internationalising of the law, hoped for an “enjoyable courtship” with European civil codes, and was pleased to work in an age when England was less and less a legal island. But he kept a judge’s liking for precedent. The new way of appointing judges, through the Judicial Appointments Commission, raised for him the risk of political lines of questioning in the American style. (“They are not going to ask them if they are fond of cats”.) He thought the old system, whereby the Lord Chancellor tapped you on the shoulder and invited you to apply, had worked pretty well.
He also disliked fixed sentences, insisting that judges should be able to exercise flexibility and discretion—especially in murder cases, where he campaigned against the mandatory life term. On the other hand, talking of American influences, England’s new Supreme Court delighted him, because it removed the law lords from the possible taint of politics at Westminster. He should have led them into the new court in 2009, but had left just a little too soon for his cottage in Wales.
For all his high positions, his face was never familiar. He preferred to work behind the scenes. “Cornhill” referred to his Welsh hamlet, not the eminence in the City of London. You would not have noticed him as he strolled round the literary festival at Hay-on-Wye every year, or even in the Strand. But on the ancient field-walls, his stones remain.
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