Lord Bingham’s Legacy

13 September 2010 by Angus McCullough KC

We have highlighted the obituaries and tributes to Lord Bingham yesterday and today.  For those interested in a more extensive review of his judicial contributions to the field of administrative law generally, and human rights law in particular, I would recommend an article published by Michael Fordham QC in Judicial Review last year:  [2009] JR 103.

This was a paper presented to the Hart Judicial Review Conference in December 2008.  As Fordham says:

There is no better way to illustrate and celebrate Lord Bingham’s contribution to administrative law than through his own words. What follows is a tapestry, no doubt just one from many, capable of being woven using strands of Lord Bingham’s judicial analysis, which will for decades to come guide and equip practitioners, academics and judges in the field of public law and human rights.

There follows a selection of cases which powerfully reminds us of the extent of Lords Bingham’s influence in developing and  clarifying the principles of constitutional law, underpinned by his unwavering championing of the rule of law and the courts’ constitutional role in upholding that.  Like many other tributes, the case of  A v Secretary of State for the Home Department is cited, including the famous observation:

the judges in this country are not elected and are not answerable to Parliament …  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.

As Fordham acknowledges, his selection is one of many that could be made and I suspect that many will be able to think of personal favourites which they would argue should have been included in such a review, but have not made it into this paper.  Of itself, perhaps, this demonstrates the impossibility of doing justice to Lord Bingham’s contribution in such an exercise.  Nevertheless, close to my own heart, I would propose Lord Bingham’s powerful dissenting speech in Roberts v Parole Board, in which the House of Lords found itself fundamentally divided on whether a closed evidence procedure was permissible in Parole Board proceedings.  The following quote gives a flavour of Lord Bingham’s view:

In M v Secretary of State for the Home Department [2004] EWCA Civ 324, [2004] 2 All ER 863, the Court of Appeal acknowledged in para 13 that a person appealing to SIAC, in much the same position as the appellant would be under the proposed procedure, was “undoubtedly under a grave disadvantage” and, in para 16, that “To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual’s rights”. In its decision letter challenged in these proceedings the Board realistically accepted that as compared with the appellant’s solicitor a specially appointed advocate would be at a “serious disadvantage” and that adoption of the special advocate procedure would result in prejudice to the appellant. I regard these observations as amply justified. In the vivid language used by Lord Hewart CJ in a very different context in Coles v Odhams Press Ltd [1936] 1 KB 416, 426, the specially-appointed advocate would inevitably be “taking blind shots at a hidden target”.

Although in the minority in Roberts Lord Bingham’s views must have coloured and informed the House of Lords when, after Lord Bingham’s retirement, they considered the approach to closed evidence in control order proceedings in AF (No.3) v. SSHD, unanimously holding that a controlled person was entitled to know sufficient of the case against him to enable him to give effective instructions to his special advocate.

As Fordham concludes in his article:

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. By the time of his retirement almost every item within the public law judicial toolkit, examined and adjusted, had come to bear the Bingham kite-mark: tried and tested. Best of all, the electronic databases are now full of authoritative, block-and-paste, Lord Bingham soundbites from which future generations of practitioners, academics and judges will gratefully crib.

Read more:

• Lord Bingham tributes: ‘a passionate supporter of the Human Rights Act’
• Lord Bingham of Cornhill dies, loss of eloquent advocate for individual rights

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