Review: Tom Bingham and the Transformation of the Law

Public Law, 2011, Jan, 177-182

It is a trite complaint of jurists in this country that judges have traditionally shied away from making extra-judicial pronouncements. In 1949, Lord Denning delivered a public lecture entitled “Freedom under the Law”. The lecture had been given as part of the terms of a trust established in 1941 by Miss Emma Hamlyn, with the aim of educating the wider public as to their legal heritage. Despite the relatively innocuous content of the lecture, it earned Denning an official rebuke from Viscount Jowitt, the then Lord Chancellor, for overstepping the boundaries of his judicial role. The implication was clear: lawyers would have to remain content with sifting through the tea leaves of reported decisions.

This rather prudish reluctance to engage in public discourse has undergone a sea-change in the past decade, not least because of the seismic constitutional upheaval which followed the 1997 general election. The result of this process was described by Vernon Bogdanor as no less than the forging of “a new British Constitution”. Major shifts such as devolution, the incorporation of the European Convention on Human Rights into domestic law and the creation of a new Supreme Court, have had the effect of forcing a re-examination of the constitutional arrangement by which the separation of powers is achieved in the United Kingdom. These changes have prompted increasing numbers of senior judges to seek to examine, explain and extemporise their approach to the judicial process.1

Lord Bingham of Cornhill was a central figure throughout this process of constitutional readjustment, presiding as Senior Law Lord from 2000 to 2008. Bingham always remained sensitive to the distinction between the branches of the state. In R. (on the application of Quintavalle) v Secretary of State for Health, 2 he reiterated that there is a “constitutional imperative that the courts stick to their interpretative role and do not assume the mantle of legislators”. However, during his time as Master of the Rolls, he argued in R. v Ministry of Defence Ex p. Smith, 3 that the court:

“…has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to ‘do right to all manner of people’.”

In recognition of his influential career, Mads Andenas and Duncan Fairgrieve have compiled a collection of essays, Tom Bingham and the Transformation of the Law: A Liber Amicorum (TBTL), which seeks to chart the nature and course of this influence.

Thomas Henry Bingham was born in London on October 13, 1933. He attended Sedbergh School in Cumbria between 1947 and 1952, and at the end of his school career seriously considered ordination to the priesthood. After he left school he spent two years in National Service which tempted him with the thought of a career as a professional soldier. But Bingham decided to first take up his place at Balliol College, Oxford. However, once he started his degree, his interest in both the priesthood and the military waned. He initially read PPE, but quickly switched to History. Excelling academically, he obtained a first, and decided to read for the Bar.

Bingham was called at to the Bar aged 25, and undertook pupillage at Fountain Court (then at 2 Crown Office Row), when the head of chambers was Leslie Scarman QC. He quickly established a wide ranging commercial and maritime practice, getting early experience of the appellate courts, where he was led by a number of experienced Queen's Counsel, including Michael Kerr QC and Morris Finer QC. He took silk in 1972, aged just 38, achieving the coveted position of the most junior barrister that year to be made up.

As Queen's Counsel his practice was predominantly commercial, but also encompassed libel actions, employment and cases arguing sovereign immunity on the behalf of foreign states.4 His talents were quickly recognised and he was appointed in 1980 as a judge of the Queen's Bench Division and as Master of the Rolls in 1992. In 1996, he was appointed as Lord Chief Justice of England and Wales. In 2000, Bingham became the first Senior Law Lord to be appointed, a position formerly assumed by the longest serving Lord of Appeal. He served in this capacity until his retirement in 2008. Bingham died of cancer on September 11, 2010 at the age of 76.

Throughout the course of his judicial career, Bingham was involved in most of the important cases which were to shape the nature of the debate surrounding constitutional change. In his review of some of these cases, Michael Fordham QC sums up his impact as a judge, noting that:

“Under Lord Bingham's management the law reports have become, perhaps more than ever before, a gold mine of principled but pithy exposition, analysis and working illustration…the electronic databases are now full of authoritative, block-and paste, Lord Bingham sound bites from which future generations of practitioners, academics and judges will gratefully crib.” 5

During his time on the bench, Bingham became a figurehead for a new approach to judicial life, seeking actively to engage in public debate over the issues which he has adjudicated on. This engagement didn't stop after his retirement. The publication of TBTL, came at a time in which Bingham, far from slowing down, was enjoying his increased freedom to engage with wider legal debates. In November 2008, he marked his first major speech since retirement by disputing the legality of the 2003 invasion of Iraq by the United States and United Kingdom, in an address in front of the British Institute of International and Comparative Law (BIICL). He has since been instrumental in establishing the BIICL's Bingham Centre for the Rule of Law, designed to promote the rule of law in all its international aspects. His untimely death has surely curtailed what would have been as active and fruitful a period as his years as a judge.

The arc of the book is ambitious, attempting nothing less than the charting of the “transformation” in the law which took place over the course of Bingham's career. Judged purely on its physical merits, it represents an impressive achievement. At its launch, Sir Sidney Kentridge QC commented that at 3 1/2lbs, it was “an ideal bedside book for lawyers with strong wrists”. In a reflection on Bingham's popularity as a judge, the editors have assembled a stellar array of contributors. Of the 53 essays in the book, two are written by current members of the UK Supreme Court, eight by Court of Appeal judges, two by High Court judges, one by a US Supreme Court Justice, as well as a dazzling host of academics and practitioners from both domestic and foreign jurisdictions.

As is true with any such collection of essays from such a diverse range of authorial backgrounds, the topics are extremely broad and there has clearly been wide editorial discretion exercised to allow individuals to concentrate on their own particular shibboleths, but there are still recurring tropes which run throughout the book as a whole. Despite the diverse range of contributors, no room has been found for any dedicated discussion on the importance of criminal law to Bingham's judicial career. This sits strangely when compared to Bingham's own volume of essays, published in 2000. In The Business of Judging, Bingham devotes eight out of the 30 essays to examining issues connected with criminal law, which seems to suggest that the subject is of rather greater personal interest than is apparent in his liber amicorum.

The book is structured around five broadly thematic chapters. These span examinations of the rule and the role of law, the independence and organisation of the courts, the role of European and international law in domestic courts, commercial law and globalisation and a final series of essays on the use of comparative law. The key themes which emerge from the essays reflect Bingham's own particular interests; the rule of law, human rights, commercial law and, perhaps unsurprisingly given the number of international authors, the role of comparative law.

The essays in this book are there to be dipped into and enjoyed for their own sake as much as that of the collection as a whole. In many respects, the book is an excellent companion piece to The Judicial House of Lords, which itself devotes a whole chapter to “the Bingham court”, as well as a fascinating study by Bingham examining the 110 individuals who have served as Law Lords (worth reading if only for the discovery that two of its members - Lord Thankerton and Viscount Dilhorne - achieved only third class degrees).

A number of essays stand out in particular as worth seeking out first, although personal preference will obviously differ between readers. I have chosen four to highlight in particular. First, is the superbly detailed analysis by Richard Clayton and Hugh Tomlinson of Bingham's role in applying human rights principles during a period of an unprecedented governmental assault on civil liberties. Mary Arden's essay is superb in reconstructing the tradition of English liberal thought that connects the work of John Stuart Mill to the application of the Human Rights Act 1998. Sir Stephen Sedley writes with his characteristic mix of humour and scholarship, of the “long sleep” enjoyed by public law during the first half of the twentieth century, before its awakening in the last quarter of the century. Finally, the ultimate tribute to the value of the essays in this volume, would come if they are introduced into the wider legal debate. Lord Bingham began this process when he referred in his 2009 Hamlyn Lecture, to the delightfully esoteric essay by Sir Basil Markesinis, which examines comparative law through the prism of Goethe's views about Weltliteratur.

Complaints of style seem almost churlish when confronted with such an embarrassment of riches. But perhaps unsurprisingly given a book of this length, some issues of contention do arise. Ross Cranston QC notes in his introductory biographical sketch of Bingham, that he chose his special subject at Baliol as “Slavery and Succession 1850-1862”, at least partly on the basis that “the sources were all in English and not, as with most of the alternatives, Latin, French, or Italian” (p.lxii). Therefore it is frustrating to the mono-linguist that three of the essays in this volume are in French, rendering them inaccessible. Despite this personal annoyance, it is perhaps tribute to Bingham's influence as a comparativist that his influence has spread so widely outside the English speaking world. That aside, the collection avoids becoming a Curate's Egg, and readers will find much of value within its pages.

At a mere 224 pages, Bingham's own book, The Rule of Law, aims to make a different contribution to legal scholarship. It is in many ways a strange subject to pick, but it is perhaps typical of Bingham's desire to take on big subjects. It reflects a judicial career which was characterised in great measure by a government which initially promoted human rights, then sought to resile as far as possible from them in the name of fighting terrorism. Indeed, as Clayton and Tomlinson point out in their essay, Bingham's tenure as Senior Law Lord started on June 6, 2000, with the Human Rights Act 1998 coming into force four months later on October 2, (see TBTL pp.729-749). Since then he has presided over 200 cases in which human rights issues have been considered by the Judicial Committee. Bingham's desire to define his views may stem at least in part from his judicial work in upholding the rule of law from legislative and executive attack. Whatever his motivation, as Lord Rodger has noted, the Rule of Law has already been cited as authority by advocates appearing in front of the Supreme Court.

Whilst clearly an enormous subject, the Rule of Law takes a non-technical approach to tackling the issues. It was glowingly described in one review by Sir Stephen Sedley (who is also set to publish a collection of essays under the title “Ashes and Sparks”), as:

“[S]tooping from panoptic heights of generality to brief but meticulously detailed case studies drawn principally from cases in which he himself has been involved.”

However, the Rule of Law has been the subject of criticism as a result of its lack of depth, in particular in a piece by John Gardner in the London Review of Books. It is certainly apparent that he feels the weight of his subject. At one point he rather risks overstating his case, writing that:

“[I]n a world divided by differences of nationality, race, colour, religion and wealth [the rule of law] is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion.” (p.174)

This is an extraordinarily sweeping assertion to make, and is left to hang on the page, without any sustained attempt at supporting argument. Trying to define the rule of law is akin to interpreting one of Rorschach's inkblots. Everyone will load the term with their own conceptual baggage. This difficulty was elegantly restated by Nietzsche in Beyond Good and Evil, when he punctured the pretentions of philosophers arguing for their grand systems, which turned out to be “generally a desire of the heart sifted and made abstract…[and] defended by them with reasons sought after the event”.

The rule of law is often fêted by lawyers as the cement in the relationship between the branches of government. Much has been made of s.1 of the Constitutional Reform Act 2005, which states that:

“[T]his Act does not adversely affect… the existing constitutional principle of the rule of law, or… the Lord Chancellor's existing constitutional role in relation to that principle.”

Nonetheless, an examination of the debate over this amendment, made during the Third Reading of the Bill in the House of Lords, displays a similar vagueness when it comes to defining the statutory purpose of this provision. Introducing the amendment, Lord Falconer stated that:

“We all agreed that we do not want to change the Lord Chancellor's existing role in relation to the rule of law. That role goes further than simply respecting the rule of law in discharging his ministerial functions. It includes being obliged to speak up in Cabinet or as a Cabinet Minister against proposals that he believes offend the rule of law. That role does not require him proactively to police every act of government. The role is not one that is enforceable in courts.” 6

Given that the section was inserted as part of a series of last minute government amendments, it is surprising that there was not a more thorough debate over the reasons for its inclusion.

The difficulty which Lord Bingham faces in his approach to arguing for a “thick” conception of the rule of law, stems from his years on the bench of largely having to make a choice between two competing alternatives, which are scrutinised through the medium of forensic advocacy. Unfortunately, old habits die hard, and his quick-fire approach to dismissing competing arguments results in a loss of some important nuances. Nonetheless, complaining that the Rule of Law is not an lengthy jurisprudential treatise, rather misses the point of the book. As with so much else in Lord Bingham's career, it represents an attempt to reach out and engage with a wider audience, to ensure that the debates contained in its few pages are aired and debated amongst as many readers as possible. As such it deserves to be read and celebrated as much for what it attempts to do, as much as how far it succeeds in its task. It is certainly an appropriate coda for a career spent upholding the rule of law.

Some 61 years after Lord Denning was first rebuked by the Lord Chancellor, Bingham delivered the 2009 Hamlyn Lecture. It is worth reflecting on how much progress has been made since then in the area of encouraging extra-judicial discussion and public debate. As for the historical importance of such musings, it seems appropriate that the final word should go to Lord Bingham, who modestly stated during the launch of his Festschrift that:

“We flicker across the stage, we enjoy a brief period of illumination and then we join, in the wings, the noble army of our predecessors who, like us, tried to lay a few stones on the long, grey wall of the English common law - well knowing that our successors will knock a few of them off in a year or two.”

Public Law, 2011, Jan, 177-182

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Footnotes

1. See G. Drewry, L. Blom-Cooper and C. Blake, The Court of Appeal (Oxford: Hart Publishing, 2007), Sir Harry Woolf, The Pursuit of Justice (Oxford: Oxford University Press, 2008) and L. Blom-Cooper, B. Dickson and G. Drewry, The Judicial House of Lords (Oxford: Oxford University Press, 2009).

2. R. (on the application of Quintavalle) v Secretary of State for Health [2003] 2 A.C. 687 at [15].

3. R. v Ministry of Defence Ex p. Smith [1996] Q.B. 517 at [556D]-[E].

4. See Rothermere v Times Newspapers Ltd [1973] 1 W.L.R. 448, Birkett v James [1978] A.C. 297, Owners of the Philippine Admiral v Wallem Shipping (Hong Kong) Ltd (The Philippine Admiral) [1977] A.C. 373 and Owners of Cargo Lately Laden on Board the Playa Larga v Owners of the I Congreso del Partido [1978] Q.B. 500.

5. M. Fordham, “Lord Bingham's Legacy” (2009) 14 Judicial Review 1 at pp.103-108.

6. Hansard, HL Vol.667, col.1538 (December 20, 2004).