Lord Bingham of Cornhill dies, loss of eloquent advocate for individual rights

12 September 2010 by Adam Wagner

Updated 13/09/10 | Lord Bingham of Cornhill, a leading judge and legal mind, died yesterday at age 76. He was a huge presence on the legal landscape, and his influence on the rule of law and human rights will be felt for years to come.

A commercial barrister by training, Thomas Bingham became a QC at the tender age of 38. He went on to act both as Master of the Rolls (1992 – 1996) and the Lord Chief Justice (1996 – 2000), as well as serving as a senior law lord from 2000 to 2008.

In a wide-ranging obituary in the Guardian, Philippe Sands says that Lord Bingham was “widely recognised as the greatest English judge since the second world war” and that

he wrote a number of leading judgments, defining the place of individual rights in the landscape of a changing British constitution, melding the relationship between long-established principles of common law with the more recent obligations of European and international laws

Despite a series of senior establishment positions, he was unafraid to rule against the government of the day in high-profile cases, and to that end was was described by Conner Gearty as having “immatured with age“. As Lord Chief Justice, Sands states that Bingham’s “reforming streak was unrestrained“. He pressed then Home Secretary Jack Straw to abolish mandatory life sentences for murder and agued for safer accommodation for released paedophiles to make re-offending less likely and protect them from being hounded.

During the noughties, he acted as a bulwark against the expansion of executive power in the face of the threat of terrorism. His influential judgments on anti-terrorism policies included A & Ors v. Secretary of State for the Home Department, relating to the indefinite detention of terrorist suspects. Giving the leading judgment, Lord Bingham rejected the Attorney General’s argument that the judiciary owe the government deference. He said that

“The more purely political… a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. … Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.”

He went on, in strong terms

It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true… that Parliament, the executive and the courts have different functions. But 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. 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.

In another similarly named case of the following year, A & Ors v. Secretary of State for the Home Department, the House of Lords (now the Supreme Court) ruled that the Special Immigration Appeals Commission could not use evidence procured under torture. Giving the leading judgment, he said that such evidence is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”. Moreover, returning to the theme of the proper place of the judiciary, he said that the answer to this particular question “is to be found not in a governmental policy, which may change, but in law”.

As well as taking up numerous charitable posts – he was chairman of Reprieve and president of the Hay Festival – Lord Bingham was also influential in the creation of the new Supreme Court, which fit well with his enthusiasm for the separation of powers and the rule of law. He later said that the creation of the court was too rushed.  His recent book, The Rule of Law, in which he proposed 8 key features of this well-known legal concept, was well received. He argued amongst other things that the rule of law had been undermined by anti-terrorism legislation. Lord Bingham continued to make waves post-retirement, calling the 2003 invasion of Iraq a “serious violation of international law“.

Shami Chakrabarti, the head of the human rights organisation Liberty, recently picked out Lord Bingham as her legal hero, for his “unrivalled combination of intellect, integrity and humility”. She said that he is an inspiration for anyone who “holds dear their hard-won rights and freedoms, and believes that human rights are universal and non-negotiable”. It is probably the greatest tribute to a judge that his eloquent rulings will continue to be analysed and cited far into the future.

Update 13/09/10: See our newer post – Lord Bingham tributes: ‘a passionate supporter of the Human Rights Act’

Update x 2: Lord Bingham’s Legacy by Angus McCullough QC

More:

• Video: Lord Bingham on his book, The Rule of Law
• Transcript of interview with Lord Bingham by Joshua Rozenberg
• Obituary by Philipe Sands

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