Lord Bingham of Cornhill
Selden Society, Australian Chapter

James Edelman and Stefan Tomasich

It was a frosty English morning in Oxford in the Hilary term in 2009. About 40 students were gathered outside the law board room waiting for the librarian to open the doors and usher them in to the seminar for the BCL course on human rights. One of the group was a little older than the others. One the Australian graduate students, not lacking in the usual confidence possessed by Australian graduates, turned to the older man and introduced himself. The older gentleman shook the Australian’s hand. “I’m Tom” he said. “And what are you studying, Tom?” the graduate asked.  

The former student who told me this story said that the Australian student was saved from embarrassment, at least until the seminar began, because the doors opened, and the crowds began to file in before Tom could reply. 

Tom, or Thomas Bingham, or Lord Bingham of Cornhill, was described in Professor Sands’ obituary as the greatest English judge since the Second World War. He was the first modern judge to hold all of the positions of Master of the Rolls, Lord Chief Justice, and Senior Law Lord. And he embodied many of the virtues of a truly great judge. 

It is fitting that we should finish this lecture series with Lord Bingham, but not for chronological reasons. Nor is the reason why it is fitting to conclude with Lord Bingham because of the legacy that he will leave in the law reports. In fact, I suspect that in 100 years’ time, it is unlikely that scholars of the law will recall the name Bingham alongside the names of Coke, Mansfield, Eldon, Blackburn, Atkin or Denning. Indeed, Bingham never thought of himself as a judge who would leave such a legacy. At the height of his powers, giving the Chatham lecture on the Future of the Common Law to a packed audience, Bingham remarked his speech reminded him of PG Wodehouse’s preface to his book Summer Lightning. Wodehouse had observed that there was already another book entitled Summer Lightning. But, he wrote, he had high hopes that his book would one day be included in a list of the one hundred best books … called Summer Lightning.  

The real reason why it is fitting to conclude this series with a speech about Lord Bingham is because he has left a legacy of what it means to combine many of the elements of what should make the ideal judge. His style, his demeanour, his work ethic, his caution, his brilliance, his patience, his courtesy, his humility, and the respect he afforded to his colleagues. Very rarely is a judge encountered who combines all of these qualities. 

***

Thomas Henry Bingham was born in London on 13 October 1933. His father was Thomas Henry Bingham. His paternal grandfather was Thomas Henry Bingham. This might have placed his parents in something of a conundrum when their first born was a girl. But, perhaps fortunately, they chose to wait to bestow the family names upon their second child. There was a moment of possible rebellion when Bingham’s mother suggested that “O’Neill” should be included in his name. Bingham’s grandfather sent a telegram to his son and daughter in law. It had only two words. “Omit O’Neill”.

The very traditional beginnings of Bingham’s life were matched by a traditional upbringing. His parents were highly educated medical professionals. His father had been born and raised in Belfast and attended medical school at Queen’s University, Belfast, becoming the medical officer of health for Reigate, Surrey. His mother, although born in California to Manx parents she had returned to the Isle of Man in 1904 at the age of 2 when her father had died. She graduated from University College in London in medicine and dentistry, and became a dentist and dental anaesthetist. 

Bingham’s parents placed him in school as a weekly boarder at seven years old at The Hawthorns, a boy’s preparatory school. In September 1947, Bingham began at Sedbergh School. Justice Cranston describes Sedbergh as being in the traditional mould of the Victorian ethos of “toughness” at public schools: boys were required to wear open-necked shirts all year around (except on Sundays) and cold baths were compulsory. It took several years before Bingham’s academic acumen was recognised. In 1950 he won the Weech History Prize, the Heppenstall Essay Prize, and the Sterling Verse Prize for his poems “Since Sinai” and “Pageantry”. In 1951 he won the Rankin Shakespeare Prize. During his time at Sedbergh, Bingham participated in the school debating society, he was an editor of the school magazine, and a librarian. He also rose to leadership positions at his school. He became head of his House in 1951-1952 and in his final year appointed a school prefect.

Around the time of the conclusion of his studies at Sedbergh that Bingham contemplated ordination. Justice Cranston suggests that this “acutely religious phase” might have been brought about by the influence of Father Horner, of the Community of Resurrection of Mirfield, an Anglican college in Yorkshire. 

***

In 1951, Bingham applied to read history at Balliol College, Oxford. Balliol was Bingham’s first preference for bizarre reasons. His housemaster, a Cambridge graduate, had previously said: “Bingham of b … b … Balliol, I think”. So it was on the whim of this alliteration that Bingham sought entry to Balliol and Oxford. Bingham provided the following account of his interview at Balliol:
I applied for a scholarship. My first impression was awe. It seemed like a holy city. I vividly remember being interviewed by Christopher Hill. I had a passion for Cromwell and, to this day, I kick myself that when I was asked whom he most resembled in modern times, I froze.   

The answer, of course, was Lenin. Bingham got a scholarship but it wasn’t a very good one. Bingham wanted to obtain a better scholarship. So he remained at Sedbergh for an additional yea. But his December 1951 attempt at a higher scholarship was not successful. 

Bingham still did not go straight to Oxford. Following World War II, he first spent two years in National Service. Again, he nearly changed career. His time in the army led to him seriously contemplating a career as a full-time soldier. He also joined the Royal Ulster Rifles. His father was born and brought up in Belfast and Bingham was capable of mimicking his father’s Ulster accent, ensuring his acceptance in his unit. During his interview with a recruiting sergeant, Bingham was asked if he was a good scholar. Bingham was still recovering from only having received a minor scholarship at Oxford. He replied, “Not really”, to which the sergeant responded “Well … can you read and write?” 

Bingham’s potential was recognised by the army within two weeks with him being selected for officer training. It was during his officer training that Bingham met the historian Maurice Keen, who studied at Balliol with Bingham and later became a fellow there. Second Lieutenant Bingham was commissioned in the Royal Ulster Rifles on 27 February 1953, graduating top of his intake. One of his military tasks was to act as defence officer before court marshals.

Bingham commenced at Balliol in Michaelmas in 1954 to read Politics, Philosophy, and Economics (PPE). AB Rodger, one of the history fellows at Balliol, had written to JP Corbett, the PPE tutor in 1952 that “I think he has the wits to get quite a respectable second in PPE”. As it would turn out, Bingham would leave Oxford with a very respectable first in History. The change in direction from PPE to History occurred after two terms of PPE. It is said that he found symbolic logic and economics not to his taste. Fortunately, he was surrounded by historians at Balliol, with Richard Southern, Christopher Hill, AB Rodger, and John Prest at Balliol. This was a rich environment to study history, with the entire course being covered entirely within Balliol. 

John Keegan, the military historian and friend of Bingham, described Bingham as an undergraduate as “very thin and intense looking … with the male ideal of good looks … It was always clear to us that he was going to do great things. He was a very funny speaker. Balliol was full of debating societies, and Tom belonged to all of them”. One university long vacation was spent on a bicycle tour of Romanesque churches in Provence with Bingham’s close friend Maurice Keen. At the end of the trip, the pair spent a few days in a chalet that Balliol owned in Chamonix. Bingham decided to climb Mont Blanc, in what was possibly one of the fastest times then achieved by an amateur. Bingham recounted of the climb:
I’m not a colossally serious climber but one has always loved the mountains, and one can become rather competitive. I remember once climbing Mont Blanc. We discovered some climbers who had been lying in a crevasse for several days. We had to decide whether to help them or go to the top and retrieve them on the way down. We did the latter. I suppose I can be ruthless.

During his final year, Bingham sought election as the President of Balliol JCR (junior common room). His opponent was Paul Sarbanes, an American Rhodes scholar. Sarbanes later became a senator from Maryland and a key figure behind the Sarbanes-Oxley Act following the Enron scandal. In a tight election, Bingham won by one vote. 

Bingham won the Gibbs Prize for Modern History, by examination, early in his final year. He obtained a first in history. Following his results, the Master of Balliol, Sir David Kerr, wrote to Bingham:
I am very glad you got your First; a year ago I would have been very doubtful, but you made enormous strides in your last year and richly deserve it. Here in Balliol we are very much in your debt, both by doing so well in scholarship and by taking the part that you did in its general life. If only all undergraduates would put as much into the place as you did, the sky would be the limit!

Bingham missed out on the All Souls College Prize Fellowship. However, Bingham’s preparation for the exam consisted of working in a concreting gang at the new Gatwick Airport laying the runway. Justice Cranston says that Bingham was grateful to Pope John Paul, who in 1982, knelt and kissed the runaway after disembarking from his aircraft.

***

After graduating from Oxford, Bingham read for the Bar as an Eldon Law Scholar, passing top of his Bar exams. Following his exams, Bingham was called by Gray’s Inn in 1959, having already been admitted to the Inn on 30 May 1956 (when he was still at Oxford). 

Bingham finished first in his Part II Bar exams, earning him the Gray’s Inn’s Society’s prize for a first-class pass in the Bar finals, the Arden Scholarship, and a Stuart Cunningham Masakic KC scholarship. Bingham began his pupillage under Owen Stable in January 1959 and then accepted tenancy at Fountain Court. At that time, the head of Fountain Court was Leslie Scarman QC, later Lord Scarman. 

The Oxford Dictionary of National Biography describes Bingham’s early days “as a knockabout succession of poorly paid briefs in undefended divorces, magistrates’ courts defences, and the like”. Bingham describes the early years:
At the bottom of chambers in those days we were completely unspecialised. We would do really virtually anything. A lot of it was extremely menial and an awful lot of it was extremely ill paid. So that one would rush around the magistrates’ courts and if they were in Central London defend drivers who were accused of careless driving for which you were paid £2.3s.6d I think. But if it was a little bit further out of London you were paid £3.5s.6d. If you conducted a jury trial at London Sessions or the Old Bailey I think it was about £4 or something like that. So this work was not greatly sought after, with the result that there was a certain amount of it about which we were all very pleased to do.

However, it did not take Bingham long to attract serious work in public and commercial law. In 1968, Bingham became junior standing counsel for the Ministry of Labour (later the Department of Education). He occupied that position for four years. He was also a standing counsel at the Bank of England. Early clients of Bingham’s included the Medical Defence Union, the doctors’ insurance firm, and the Ministry of Labour.

Bingham soon came to the attention of Lord Denning, who was then Master of the Rolls. Further, Melford Stevenson, the previous head of chambers at Fountain Court, put in a strong word with the Lord Chief Justice, Lord Widgery. The result of this attention was that, in 1972, Bingham took silk at the age of 38. He was the most junior of barristers to be appointed silk that year. However, despite his relative youth, Bingham had developed an extensive practice. He became a Recorder in 1975. 

Within only a few years of taking silk, Bingham became a leader of the English bar.  Lord Denning identified Bingham and Patrick Neill as the two foremost advocates of their time. Lord Phillips also described the contrasting style of the three “outstanding advocates” of Bingham’s generation, Robert MacCrindle, Lord Alexander of Weedon, and Bingham:
Bob MacCrindle, silver tongued gave the impression that his only concern was to prevent the court from making a terrible mistake. 

Bob Alexander always appeared personally to be persuaded of the merits of his client’s case and not prepared to leave a point until he had talked the court into sharing his viewpoint. 

Tom’s approach was to present a series of propositions, each one honed with precision and supported by authority, the effect of each item of which would be summarized in a pellucid précis. This advocacy, firmly delivered but with a tactful deference, was devastatingly effective. 

As Stephen Sedley explained, there was nothing flamboyant or oratorical about Bingham’s style of advocacy. He was quietly spoken, courteous, and methodical. In 1977, having been silk for five years, he was appointed as the head of an enquiry into allegations of breaches of United Nations trade sanctions against Rhodesia in 1977. The Rhodesian enquiry caused a sensation. Bingham found that oil companies had knowingly contravened the sanctions, and alarmingly, with the complicity of British public servants. Ultimately no prosecutions flowed from Bingham’s findings, but his work was widely lauded. In 1979, Bingham was made a bencher of Gray’s Inn. Two of the other three Inns of Court also made him an honorary bencher. 

In 1979, the earnings of leading barristers at the English bar were very significant. Today they are astronomical. But Bingham was not materialistic in any sense. While other barristers had vast estates in the countryside or the south of France, Bingham had a simple cottage in Wales. His son-in-law and parliamentarian, Jesse Norman, described the cottage as a “typical Welsh farmer’s cottage” and simply appointed. The phrase “simply appointed” is a lovely English euphemism. The Cottage had no hot water. It had no cold water. In fact, it had no internal plumbing. It had no sanitation. A council inspection concluded that the house was unfit for human habitation. In the year when Bingham was appointed Lord Chief Justice and elevated to the House of Lords, he took on the title of Cornhill after the Welsh hamlet where his cottage was located. Only then did he decide to renovate the cottage to include running water and sanitation. Bingham’s generosity, and lack of concern for material wealth, was also shown in chambers. He focused on the pupils in his chambers. He would involve them in the discussion of legal problems, and take them to after work drinks the other members of chambers. In an era where pupils paid a fee for the privilege of working in chambers, in at least one instance Bingham connived at a way to return a pupil’s 100 guinea pupillage fee by paying the pupil £10 a week for his assistance.

He behaved in the same way to his juniors. Lord Phillips tells the story of when he acted as Bingham’s junior in a competition case. Phillips had just moved from an Admiralty chambers and he described himself as having no feel for either the law or the procedure. In conference with the clients, Bingham turned to his junior and said “right, we will need the usual summons and affidavit in support”. Phillips’ face fell. But Bingham said nothing. Only when the solicitors had left did he turn to Phillips and say quietly, “don’t worry, I’ll draft the documents”.

***

In 1980, at the age of 46, he became a High Court judge in the Queen’s Bench division and a judge of the Commercial Court. While several of Bingham’s peers at the Bar, including MacCrindle and Alexander, had declined an offer to join the bench, Bingham took the opportunity. Later, when discussing his reasons for accepting appointment, Bingham described that practice in silk, sometimes left advocates “feeling like heavyweight boxers who just can’t bear to go back into the ring”. He explained that “as you get more senior, the cases get longer, which makes them more burdensome and in a sense more worrying, particularly if they are going wrong”. 

Bingham never regretted taking an appointment at a young age. In one of the final contributions he made about the Supreme Court he suggested that:
	the task of selecting future Justices of the Supreme Court is not to choose seasoned judges nearing the end of distinguished careers to spend two or three years in the Supreme Court before retirement but to choose outstandingly able younger candidates who would have time to mature and develop in office. There would be obvious risks in this more adventurous approach, and it might well lead to more appointments from professional practice and from academe. But it may be an approach worth considering in order to achieve a blend of youthful energy with seasoned experience in a court finely attuned to the contemporary world. 

On the Queen’s Bench, Sir Thomas, as he became, was assigned to the Commercial Court. Very few of his decisions were overturned. One exception was Rhesa Shipping v Edmunds, which was controversially overturned by the House of Lords. The appeal rested on the inference drawn by Bingham J, based upon his findings of fact, that a ship had been lost at sea. Lord Brandon, who delivered the only reasoned judgment in the House of Lords, had enjoyed a very similar career to Bingham. He had also gone to the bench, in admiralty, at the age of 46. Lord Brandon delivered a judgment which was sarcastic, and at points almost sneering. He said this of the reasoning of Bingham J:
	My Lords, the late Sir Arthur Conan Doyle in his book "The Sign of Four", describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

Bingham did not take kindly to the House of Lords’ critique of his reasoning. It may have been a reason why, in the entirety of his career as an appellate judge, Bingham never spoke unkindly or with sarcasm about any of the decisions of which he reviewed on appeal.

In 1986, Bingham was appointed to the Court of Appeal. And in 1992, Bingham succeeded Lord Donaldson as Master of the Rolls. While Bingham was on the Court of Appeal, he was appointed to conduct an enquiry into the Bank of England’s supervision of the Bank of Credit and Commerce International, which had recently failed and left thousands of depositors and shareholders exposed. Bingham concluded that the Bank of England’s supervision was deficient. After Bingham’s report was published, an action was commenced by 6,231 depositors against the Bank of England. Relying upon Bingham’s report, Clarke J and the Court of Appeal struck out an action by creditors against the Bank of England based on the tort of misfeasance in public office as having no reasonable prospect of success. The House of Lords subsequently held that it was not appropriate to have regard Bingham’s report and overturned the strike out decision. Over the course of twelve years of litigation the Bank of England, through its officers, was accused by the liquidators of what the trial judge described as “an immense catalogue of outrageous behaviour” including a litany of claims of dishonesty. After day 256 of the trial, the liquidators abandoned their claim. The judgment granting indemnity costs was one of the most scathing judgments ever written by an English judge. After Bingham’s death Lord Phillips lamented that the House of Lords had not allowed the lower courts to follow Bingham’s report describing the litigation as “the most expensive piece of hopeless litigation that the Commercial Court has ever seen”.

Bingham was appointed Lord Chief Justice in 1996 after Lord Taylor fell ill. The appointment was unexpected given Bingham’s limited experience in criminal law. It was met with some opposition, including from Lord Taylor, on the basis of Bingham’s lack of experience in criminal law. However, misgivings were quickly dispelled. Bingham sat regularly as a trial judge and in order to regain the feel of trial and sentencing procedure he would travel out on circuit.

In 2000, Bingham accepted Lord Irvine’s offer of Senior Law Lord. When Bingham was appointed Senior Law Lord in 2000, he had already served four years as Lord Chief Justice and four years before that as Master of the Rolls. Traditionally the Senior Law Lord was the longest serving Law Lord. In 2000, that person was Lord Slynn. But Lord Slynn was tainted with the scandal of the Pinochet affair: he had been the presiding judge of the first Pinochet panel and it was said that Lord Hoffmann had spoken to him about Lord Hoffmann’s links with Amnesty International prior to the hearing and that they had decided that disclosure to the parties was not required. 

The appointment to Senior Law Lord was, technically, a step down from Lord Chief Justice for Lord Bingham. But it placed Lord Bingham in a position to influence the operations of the House of Lords at a time of great flux. Bingham had also been finding the role of Chief Justice burdensome, because of the administrative workload and the heavy emphasis on crime. The burden was so great as Chief Justice that Bingham had been considering early retirement.

Bingham presided over the House of Lords at a time of high turnover. When he was appointed, the House of Lords comprised of Lords Slynn, Nicholls, Steyn, Hoffmann, Hope, Clyde, Hutton, Saville, Hobhouse, and Millett. By the time Bingham retired in September 2008, only three of the Lords who were on the Court when Bingham commenced as Senior Law Lord remained (Lords Hoffmann, Hope, and Saville).

Bingham was a firm believer in reform of the legal system. In 1989, when Lord Mackay proposed to allow solicitors to appear before the High Court, Bingham publicly supported the move. He got on the wrong side of some of his colleagues by declaring that the greatest threat to the Bar was not the proposal, but rather the professions reaction to it. Bingham commented that “We delude ourselves if we do not suppose there is not a large body of responsible, middle-of-the-road opinion that regards the legal profession as riddled with anachronistic conventions and privileges”.

Under Lord Bingham, the House of Lords began to change in very noticeable ways. Brice Dickson, writing of the “Bingham Court, 2000-8” in The Judicial House of Lords 1876-2009, saw this as a rare example of when a British court can be eponymised. 

He supported the abolition of judicial wigs, the use of plain English, and the imposition of time limits on counsel. He convened seven-judge benches on six occasions and within a couple of years of commencing even began convening nine-judge benches in exceptional cases, something that had not occurred since 1910. Four nine-judge benches sat during Bingham’s tenure as Senior Law Lord. He also began the practice of collective judgments which were described as “considered opinions of the Committee”. He introduced research assistants for the Lords. One early research assistant told me that the Lords had very different approaches to their research assistants. None would permit their research assistants to draft judgments like the clerks on the United States Supreme Court, but some permitted their research assistants to draft legal memoranda on cases before the judge. Others, I have been told, were nervous even about the propriety of allowing a research assistant to prepare a cup of coffee. 

Another hallmark of the Bingham Court was the efficiency with which the House of Lords dealt with matters. Appeals were usually heard over one or two days, with the average time for delivering judgment being two months. The reduction in delivery time for judgments to around 2 months was in a large part due to Bingham’s contribution. After a hearing of an appeal Bingham would often disappear to his cottage in Wales for the weekend and return with a draft judgment.

As senior law lord, Bingham was a leader but he did not embody some of the negative characteristics that are, fortunately rarely, seen in leaders of some courts. Bingham described his role as Senior Law Lord as being like “the conductor of an orchestra with a group of very experienced and talented instrumentalists”. He had great respect for his colleagues and would never interrupt them during an appeal hearing. Nor would he ever attempt to dominate the hearing. He was not a ‘tactician’ or ‘lobbyist’ like Atkin or Dilhorne. This meant that in cases where the court was divided, he was in the minority in nearly 30% of those cases.  In conferences after the appeal hearing he did not try to dominate. Instead, he rigidly adhered to the convention that as the senior judge he spoke last. Lady Hale has remarked that when the judges made their comments after a hearing, junior to senior, they rarely knew what Bingham was going to say. Stephen Sedley wrote that 
Both the law lords and privy council traditionally discuss their cases in reverse order of seniority. Bingham’s natural courtesy inclined him anyway to listen to other before expressing his own opinion. When he did so, and equally when conversing with colleagues, he would occasionally and unexpectedly decorate his prose with a four-letter expletive.

Alan Paterson gives a wonderful example of Lord Bingham’s respect for his colleagues. I should pause at this stage to say that on the Federal Court I have never seen a departure from this same tradition of respect and independence in appeals. The example involves the House of Lords decision in R v Secretary of State for the Home Department ex parte Anufrijeva. The question involved whether the withdrawal of income support needed to be communicated to an asylum seeker. The words of the legislation contained no such requirement. But during the hearing it became clear that the Home Office had a policy of withdrawing income support without notifying the asylum seeker. Lord Scott, the junior judge, spoke first. His opinion was tentative and he acknowledged several changes of mind.  He said that he would allow the appeal on the basis that notification was required. Lord Hoffmann was next. He said that originally he was going to allow the appeal but he had decided to dismiss it: the words of Parliament were clear. Lord Millett agreed with Lord Hoffmann. But Lord Steyn would have allowed the appeal. So the bench was split 2:2. Lord Bingham spoke last. We must give effect to the clear words of Parliament he said. The appeal must be dismissed. 

Lord Bingham wrote quickly, as was his practice. Then Lord Steyn circulated a blistering dissent. Lord Scott’s doubts were removed and he joined with Lord Steyn. Lord Millett and Lord Hoffmann also changed their minds. Lord Bingham went from being in a majority to being in a minority of one. As Paterson observes, “true to form he did not fight for his position”. But he did add a note to his judgment about the importance of giving effect to the clear words of statutes. 

Perhaps the most significant of Bingham’s reforms on the House of Lords was his support for the establishment of the UK Supreme Court as a replacement to the judicial House of Lords. Lady Hale described the Supreme Court as Lord Bingham’s “baby”. Bingham was initially one of a minority of the serving law Lords who agitated for a Supreme Court. But his case for reform was simple. The outward reflection of the institution should be consistent with the practical reality. The law Lords were no longer, in any practical sense, a committee of the upper house. They were a court and should be seen as a court. He was asked in an interview whether his peers in the House of Lords would also support the development of a Supreme Court given that it would mean the loss of their peerages, Bingham responded “I don’t speak for a united college”. The interviewer then observed a vestigial snobbery in some of his fellows, who like to be lords. Bingham replied “I don’t give a f*** whether my peers do or not”. (Bingham’s resort to profanities was not uncommon). 

Bingham saw his position as being to “steer the law lords towards being a supreme court that would occupy the same constitutional position as those in the United States and elsewhere”. However, while an advocate for the development of the Supreme Court, Bingham cautioned against a move towards an American style court, opposed to any ability of the Supreme Court to challenge the doctrine of parliamentary sovereignty by striking down acts of parliament. I will come now to his strong views about parliamentary sovereignty and his philosophy of judging. 

***

In the last lecture in this series, Justice Douglas rightly observed that most judges engage in the business of judging. Few reflect in great depth on the boundaries and philosophy of their role. Even fewer publish such reflections. Bingham was one of those few. Brian Simpson speculated that this places Bingham in the ranks of a “very small fraction of one percent” of those who have held judicial power over the last millennium and engaged in public reflection about their role. In England that small fraction includes Fortescue, Coke, Mansfield, Eldon, Bacon, Hale, Blackstone, Atkin, and Denning. Notably, this includes almost all of the list of the judges in this Selden series of lectures. Notable examples in Australia are Sir Owen Dixon, Dyson Heydon, and Michael Kirby. In the United States, the judge who has written more about this subject than any other (indeed, more about almost any subject than any other) is Judge Posner.  

Some of Bingham’s main reflections on judging were (i) a lecture he gave in Oxford in 1990 entitled ‘The Discretion of the Judge’, (ii) an essay on ‘The Judge as Lawmaker’ in a collection in honour of Lord Cooke in 1997, (iii) the Maccabean Lecture on Jurisprudence in 2005 on ‘The Judge: Active or Passive’, and (iv) his Hamlyn lectures in 2010. 

In the first of those essays in 1990 in Oxford, Bingham focused upon judicial discretion. He deliberately avoided the deep debate on that topic, from which Oxford was only just beginning to recover and perhaps still suffers. The opening paragraph of that speech began with an anecdote that caused Bingham great concern:
	A judge of my acquaintance once told me that when, in the course of trying a case, he encountered any problem of unusual difficulty, it was his practice to glower at counsel in his most forbidding manner and demand “Is this not a matter within my discretion?” On counsel agreeing that it was – which it seems they readily did – he would sink back in his chair with relief, relaxed in the knowledge that no matter which he decided his decision would be immune from successful challenge on appeal.
 
The theme of his speech was to rail against undirected and unreviewable discretions. 

In his 1997 essay Bingham posed four models of a judge. 
(1)	The judges who say that it is their job to apply the law, never to create it;
(2)	The judges who say that they do create law but that they should pretend that they do not;
(3)	The judges who say that they have a role to create law and that they should enthusiastically exercise this role in a relatively unconstrained way whenever the call of justice demands;
(4)	The judges who say that they have a role to create law but that the important question is how they exercise this role and how they ought to exercise it.
 
Unsurprisingly, Bingham located himself as a judge of the fourth variety. 

By his 2005 Maccabean lecture, Bingham turned to the manner in which judges exercise their role. He articulated the importance of the “elusive boundary between legitimate judicial development of the law on the one hand and impermissible judicial legislation on the other.”

This focus built upon Bingham’ reflections 15 years earlier concerning judicial discretion. One of the most obvious constraints upon judicial discretion to develop the law is the very nature of inter partes adjudication. Ultimately, the judge’s role is to resolve disputes, or matters, between parties. And within that adjudicative role there are additional restraints upon discretion. Bingham did not express the matter in these terms but the tenor of his article was that the more constrained is the discretion of a judge, the less the role of the judge resembles that of a legislator. Although Bingham railed against unrestrained discretion, he believed that a judge should have a significant margin for discretion. In this paper I will speak mainly of his enlargement of discretion in public law, but it is also evident in his approach to private law, particularly in equity. 

In considering the divide between legislation and adjudication, Bingham also emphasised the importance of reasons and of the judge explaining honestly the considerations motivating his or her reasons. It is not entirely clear what would fall within his conception of honest explanation. Would Bingham’s conception of transparent honesty be violated by the judge who reached a conclusion based on a general sense of the right decision and then tried to develop a convincing legal justification for that decision but without enunciating that the reasoning was proceeding from the top-down or from the answer backwards? Perhaps Bingham avoided making any overt reference to this style because it was employed, in differing degrees, by many of his colleagues. Indeed, as Justice Douglas showed us in the previous lecture, Lord Denning’s view was that this was the only legitimate approach to judicial decision making. 

At an even more fundamental level, this question also raises issues concerning a vast psychology literature, particularly in the United States which is concerned with conscious, subconscious, and sub-subconscious biases. But these were never really matters that concerned Lord Bingham. Bingham’s view was probably consistent with Brian Simpson’s which is that something is lost when we discount the judge’s own view in favour of some attempt at pure objectivity. For instance, as Simpson observed, when two lovers embrace in the moonlight it will probably convey more to the bystander to use their description of the event as a “kiss” than to say that what they were really doing was engaging in a transmission of oral bacteria. 

The last of his lectures, the Hamlyn lectures in 2010, were the most outspoken. Some background is necessary. Lord Bingham was one of the first supporters of the incorporation of the European Convention on Human Rights into the English law. Bingham regarded the Human Rights Act 1998 as the Blair Government’s greatest achievement. He was the first senior judge since Lord Scarman to offer public support for the incorporation of the European Convention on Human Rights into UK Law. His responses, when challenged about his support of the Act, were caustic. He would ask which right the UK should do without: the right to life? The protection from torture, inhuman or degrading treatment?

In 2009, Lord Hoffmann gave a speech that cut deeply into Bingham’s views. Lord Hoffmann published it in the world’s leading law journal, the Law Quarterly Review, entitled ‘The Universality of Human Rights’. The title to this essay was slightly misleading. It should have had a question mark at the end of it. Hoffmann’s argument was that human rights were universal in abstraction but national in application. His article raised concerns about the mechanism for the application of abstract principles to the concrete facts in the United Kingdom. That mechanism was the European Court of Human Rights in Strasbourg. Lord Hoffmann spoke of the practical problems: by November 1, 2008 there were 100,000 individual petitions pending before the ECHR. 60% of them were from five countries: Russia, Turkey, Romania, Ukraine, and Italy. Every one of these 100,000 petitions, if properly filled in, must go before a committee of three judges to determine admissibility, and then before a committee of five. This is a massive backlog. 

Moving from the practical to the theory, Hoffmann gave a number of examples of decisions of the ECHR which, in the language of Bentham, he considered to be cases of teaching grandmothers to suck eggs. I will just describe one. This was the case of Saunders v United Kingdom. In that case the ECHR held that Mr Saunders’ right to a fair trial had been violated because the evidence against him had included a transcript of what he said to inspectors investigating his conspiracy, false accounting and theft charges. This was because his statement to inspectors had been compelled by legislation and was found to infringe his privilege to remain silent. Lord Hoffmann expressed surprise at the failure of the ECHR to consider the 200 year history of similar provisions in bankruptcy and company law before pronouncing that the infringement of the privilege to silence amounted to a failure to afford a fair trial. He also remarked of the consequences of the decision. A subsequent case involved the question of whether the right to a fair trial had therefore also been denied by legislation which required the driver of a speeding motor vehicle to say who had been driving it, or to pay a fine. In the domestic courts, Lord Bingham had attempted to dispose of that case summarily. But in Europe it proceeded all the way to the Grand Chamber before being dismissed. There were still two dissents. One of them said the following of legislation against speeding:
	In my opinion, if there are so many breaches of a prohibition, it clearly means that something is wrong with the prohibition. It means that the prohibition does not reflect a pressing social need, given that so many people choose to breach it even under threat of a criminal prosecution. And if this is the case, maybe the time has come to review speed limits and set limits that would more correctly reflect peoples’ needs … It is difficult for me to accept that hundreds of thousands of speeding motorists are wrong and only the Government is right.

Hoffmann’s critique continued. He focused on the hearsay rule and the life breathed into that rule by the Strasbourg court after Parliament, the Law Commission, and the English courts had tried to largely abolish it. He also considered the finding by the ECHR against the United Kingdom in relation to the question of whether judicial review was adequate concerning whether the United Kingdom had struck the right balance concerning night flights from Heathrow. Lord Hoffmann mused that this case sounded “about as far from human rights as you could get”. I pause to say that Lord Hoffmann did not mention the decision of the ECHR which nearly abolished the jury system, or the extreme controversy surrounding the decision of the ECHR concerning prisoners’ voting rights.

In his 2010 Hamlyn lectures, Bingham responded to this critique in his usual polite and respectful way. He instanced a number of ECHR decisions which he defended: a requirement for a legal framework to justify the interception of personal communications; the requirement for the State (including law enforcement) to destroy fingerprint and DNA samples of people who have been convicted of no crime; the invalidity of a blanket denial of artificial insemination procedures for serving prisoners; routine opening of prisoners’ letters to solicitors. Some of these decisions were very controversial in the United Kingdom. Lord Bingham finished with the decisions of the Strasbourg court concerning intimate and sexual behaviour including convention violations by laws which criminalised homosexual behaviour and the blanket policy of the Ministry of Defence to exclude homosexuals from the armed forces. His concluding flourish, relying upon the European decision in Smith & Grady is significant. In the Court of Appeal, Bingham had upheld the policy of the UK army of not allowing gay or lesbian men or women serve. The European Court subsequently found that the policy was a breach of the Convention.

Lord Bingham accepted that his conception of the importance of the ECHR, as a supranational body, would have been regarded by Jeremy Bentham as “nonsense on international stilts”. But, he argued, a purely national application of human rights, as proposed by Lord Hoffmann, would “inevitably lead to significantly different application between state and state”. Lest it be responded that this was exactly the point that Lord Hoffmann was making, Bingham continued: “Lost would be the ideal, boldly proclaimed in 1948, imperfectly realised but noble in conception, that there are some rights so basic that they should be enjoyed by everyone everywhere.”

Perhaps Bingham’s best-known judgment was in this area. It was the 47-page lead judgment he delivered in the Belmarsh Prison case in 2004. Lord Bingham was in the majority in that case in holding that the post 9/11 power conferred by Parliament to detain foreign suspected terrorists without trial contravened the European Convention. One ground upon which Lord Bingham decided that case was that the legislative provision – s 23 of the Anti-Terrorism Crime and Security Act 2001 – had infringed the Convention right to liberty and security of the person. The Attorney General had argued that it was for Parliament and the executive, not the courts, to assess what was necessary to protect the public and the extent to which it was necessary to derogate from the security of the person. Lord Bingham had a short answer: 
The Attorney-General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights…

Lord Bingham’s Belmarsh Prison judgment did not explore the curiosity in s 6(1) of the Human Rights Act to which he referred. What does it really mean to say that it is “unlawful” for an English court to act inconsistently with a Convention right by applying UK legislation. In other words, what does the Human Rights Act mean, in relation to courts, when it provides that it is unlawful for the courts to act in a way which applies domestic law? A jurisprudence concerning “disapplication” has now begun to develop. But this was not the concern in Belmarsh Prison.
 
Following the judgment, Bingham was heralded by The Guardian as the “radical who is leading a new English revolution”. These words, intended as praise by the Guardian, were not received in that way by Lord Bingham. Bingham responded that he did not think the assessment was “at all apt”. He saw himself as applying the law, no more and no less. His position was, perhaps, weakened by his public, and political, advocacy for the law that he was applying. Perhaps this was why the press did not see Lord Bingham’s judgment as he saw it. Kettle concluded his article in the Guardian by saying that “Lord Bingham's revolution may be poised for victory. But we will all be winners if it succeeds”. 

Bingham’s approach continued. In the second Belmarsh case, he was in a minority who held that the onus was on the government to prove that evidence had not been obtained by torture, not upon the party alleging it. Lord Bingham remarked, in words of unusual (albeit polite) force:
	I regret that the House should lend its authority to a test which will undermine the practical efficacy of the Torture Convention and deny detainees the standard of fairness to which they are entitled under Article 5(4) or 6(1) of the European Convention. 

Perhaps one tension within Lord Bingham’s philosophy of judging was the coupling of his passionate defence of Strasbourg with his staunch defence of Parliamentary sovereignty. Putting aside the European dimension, the United Kingdom’s lack of a written constitution has historically seen debates about Parliamentary sovereignty rage over examples that are usually extreme. To give a few of the examples cited by Bingham in his popular book The Rule of Law: Could Parliament legislate to require that all blue eyed babies be killed? Could Parliament legislate to confiscate the property of all red-haired women or to deprive Jews of their nationality? These examples do not really assist the debate. As Dawson J explained, “a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power.”

But less extreme examples can make the principle seem more vibrant. Sir Edward Coke in Dr Bonham's Case said that the College of Physicans could not act as both the prosecutor of Dr Bonham as well as the judge.  In one passage, Coke wrote that 
in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.

There is one view, which is now probably discredited, that this passage was referring to a power to strike down the legislation as void because it contravened principles of natural justice. More recently, however, in the challenge to the Hunting Act 2004 in R (Jackson) v Attorney General, Lord Steyn, Lord Hope and Baroness Hale all treated the rule of parliamentary sovereignty as a common law rule which might not apply in some circumstances. Lord Steyn suggested that since judges created this rule of common law they might, in exceptional circumstances, such as an attempt to abolish judicial review, modify the rule of parliamentary sovereignty. 

Lord Bingham would have none of this. He cited one brilliant New Zealand writer who characterised the arguments of these three of Bingham’s former colleagues as “unargued and unsound”, “historically false” and “jurisprudentially absurd”. Lord Bingham’s point, relying heavily upon work by Professor Goldsworthy, was that the judges “did not, by themselves, establish the principle [of parliamentary sovereignty] and they cannot, by themselves, change it”. He continued, quoting from Goldsworthy: 
What is at stake is the location of ultimate decision-making authority – the right to the ‘final word’ – in a legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. In settling disagreements about what fundamental rights people have, and whether legislation is consistent with them, the judges’ word rather than Parliament’s would be final. Since virtually all significant moral and political controversies in contemporary Western societies involve disagreements about rights, this would amount to a massive transfer of political power from parliaments to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum. It is no wonder that the elected branches of government regard that prospect with apprehension. 

***

Bingham retired in 2008. Retirement did not slow Bingham down. While many might have expected Bingham to retire quietly to his cottage in Wales, Bingham began a new life in the law. Perhaps this was unsurprising. In a 2003 interview he commented that “I would hate to be idle for the rest of my life”. He returned to the University of Oxford, without salary to lecture students and to lead seminars. And he began to write and speak publicly. I have already mentioned his Hamlyn lectures. He also wrote a popular book, entitled The Rule of Law which, to return to one of his earlier themes, is almost certainly in any list of the best 100 books entitled The Rule of Law. And he began to deliver public addresses, including a famous speech he gave in 2008 denouncing the legality of the United Kingdom’s involvement in the Iraq work. 
***
Perhaps the strongest criticism of Bingham was that he was a little outspoken in public on policy issues such as the Human Rights Act. There are some judges today who believe that a judge in a leadership position should speak out on issues of policy. One difficulty with this view is that it weakens the judge’s claim as a neutral arbiter of technical issues. As one of my former colleagues remarked ‘it is important for the law to be as boring as possible’. By this he meant to emphasise that the skill of great judges is technical legal competence not their views on policy which could compromise the law by allowing, in the unfortunate modern parlance, a “realist” view to take hold. We can see this in jurisdictions where issues on the technical application of equity concerning assignment of contractual rights divides a court according to the political views of its judges. 

Two points should be emphasised which militate against any image of Bingham as overtly political. The first is that in hindsight we can see from cases like Smith & Grady or Anufreijeva that if Bingham was a political liberal then he reached decisions, by proper application of the law as he saw it, which must have been anathema to him. 

Secondly, apart from his extra-curial advocacy for human rights legislation, Bingham was very guarded about any political or policy views that he held. Although he was sometimes described as a small “l” liberal, when he was asked about this classification he just smiled and said that he “wouldn’t want to be called illiberal”. And when the Telegraph described Bingham as being a Tory supporter, his son-in-law claimed that he had no idea how Bingham voted.

As a modern judge, Bingham’s greatest virtue was to combine attributes that are not always seen together.

He was as brilliant as Diplock. But, unlike Diplock, he was genuinely modest which enabled him to shift his position during oral argument. 

He was as sharp as Brandon or Sumner. But, unlike them, his words were steeped with the beauty of English civility. He was never rude or sarcastic about his colleagues. 

He had the reforming zeal for the outdated of a Mansfield or a Denning. But he had the caution and respect for precedent of a Wilberforce or a Reid.

He wrote rapidly, perhaps more rapidly than any other of his contemporaries except Lord Hoffmann (who had been known to circulate judgments during a hearing). But Bingham never wrote to be tactical and never with an eye to garner a majority.  

As a Peer of the Realm and Knight of the Garter, he was far removed from the ordinary person. But he moved with everyday people comfortably and with humility (although perhaps spending weekends without running water or sanitation is not the style to which everyday people are accustomed). He had all titles but no graces. When Bingham was persuaded in 2003 to stand for election as chancellor of Oxford University, Marcel Berlins published a poem in the Guardian to describe Bingham’s campaign:
A law lord of great reputation, 
A judge known for brains and aplomb, 
Is seeking an Oxford vocation, 
So now he says "Just call me Tom" 
"Lord Bingham" sounds posh and affected, 
So please follow his website dot com, 
If you want him to Oxon elected, 
Vote for plain, honest, simple - just Tom.