A tribute: Lord Bingham’s passion for justice and history

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For me, last Thursday was Bingham day. I spent the morning interviewing the former senior law lord about a centre for the study of the rule of law to be established in his name. In the afternoon I dipped into a book of essays written in his honour by more than 50 of his friends and admirers. And in the evening I was at Gray’s Inn to see him accept a handbound presentation copy of this 900-page liber amicorum with a speech that demonstrated both lightness of touch and a deep feeling for legal history.

The Bingham Centre for the Rule of Law is to be established in London by the British Institute of International and Comparative Law – once the necessary funding has been raised. It will be dedicated to the promotion of the rule of law in its international aspects, developing the work that formed the foundation of Bingham’s judicial career.

And here I must declare an interest as a member of the institute’s appeal board: it was in that capacity that I filmed an interview with him for the institute’s website. There are not many retired chief justices who can chat so engagingly about the rule of law – the nearest thing we had, he said, to a ‘universal, secular religion’.

But how could a group of academic lawyers in London solve problems ranging from climate change to the control of cyberspace? Surely these were matters for international agreement?

‘I’m not supposing for a moment that a whole lot of lawyers are going to dictate what the nations should decide,’ Bingham told me.

‘But it’s highly desirable, before decisions are made on these questions, that they should be very fully explored.’ There was great variation, for example, on how different countries tackled the problems of international terrorism.

But some people, I suggested, felt that the rule of law was enforced by minorities at the expense of the majority.

Bingham accepted that human rights charters were there to protect minorities because, to a large extent, majorities could look after themselves. But he pointed out that the European Court had said ‘time and time again’ that there needed to be a balance between the rights of the individual and the rights of the community.

How, though, can the majority protect itself against potential attack by a suspected terrorist?

Bingham responded by alluding to the law lords’ most recent ruling on control orders. Even an alleged terrorist was entitled to a fair hearing, he said. The suspect needed to know the thrust of the case against him and should have a reasonable opportunity to answer it. ‘The difficult question here is to draw the line between a hearing that is fair and a hearing that is not.’

The former senior law lord accepted that risk of international terrorism made it harder to persuade people of the importance of the rule of law. ‘But I also think it makes it even more important to adhere to it; and to accept that, even in times of crisis, there are some things which are not permissible in a civilised society – like resort to torture.’

Future generations of law students will no doubt regard it as perfectly commonplace to summon up a 20-minute interview with a recently retired judge at the click of a mouse. It is sad that we cannot peer equally clearly into the minds of his predecessors.

And although serving judges have always delivered public lectures, it’s still rather unusual to find so many of them writing so freely in a single book. As Sir Sydney Kentridge QC said at the launch of Tom Bingham and the Transformation of the Law, it is ‘infused with a very warm affection for Lord Bingham’. Many of the contributors take his views as their starting point.

Though still something of a pot pourri – a term that springs to mind because a few of the essays are published in French – the book is immensely rich. Anyone reading it from cover to cover will be well informed on all the great issues of the day, though some caution may be needed: Kentridge described the work, published by OUP at £95 and 3½lb, as ‘an ideal bedside book for lawyers with strong wrists’.

In response, Bingham was typically modest about his own contribution to the law.

‘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.’

Not so, says one contributor – citing several cases where Bingham’s view ‘is to be preferred to that of the majority’. Another, Lady Hale, agrees that ‘even when Bingham is in the minority, one often has a sneaking sense that history will prove him right.’

History, of course, is important to Bingham. He concluded his acceptance speech by debating when it would have been most exciting for an English lawyer to have lived.

‘Some might say: riding round the shires with Henry II in the days when the Royal writ was being established; or taking part in the great constitutional debates of the 17th century; or laying down the elements of equity in the 18th century; or being one of the great Victorian masters of the common law in the 19th century.

‘My own view is that we are extraordinarily privileged and fortunate to have lived – and practised as lawyers – now.’