2015 Selden Society lecture – the Hon Justice James Edelman on Lord Bingham

Your honours, ladies and gentlemen and those
in Townsville. Each of this year’s Selden Society lectures has been a treat. There are
two consistent ingredients I think. The first has been a great subject and the second a
terrific presentations. Tonight we will have both those ingredients again. The subject
is Tom Bingham, later Lord Bingham and the presenter I have the honour to introduce is
Justice James Edelman. A week ago his honour gave an equity lecture
in this room. When he de-constructed and reassembled the law of tracing. He’s industrious to
a fault, in returning so soon. Bearing that in mind and with your indulgence may I not
list all his honours credentials instead may I say how glad we are to have him here in
Queensland. A well-known Australian sportsman, the cricketer Mitchell Johnson recently retired.
He of course is a Queenslander who was stolen by Western Australia. With the assistance
of the Federal Court of Australia we in Queensland are glad to have stolen Justice Edelman from
Western Australia. As repayment of the interstate debt, with interest I think. On a slightly more serious note, may I focus
on one aspect of his honour’s achievements thus far. And that is his honour’s reputation,
so well deserved, as an outstanding teacher at the University of Oxford. That University was the first in England to offer a degree in law. His honour obtained
a D Phil in law from Magdalen College in 2001. And at a very young age was appointed to a
University Chair, as the Professor of the Law of Obligation in 2008. A befitting recognition
of one of the university’s leading research and teaching academics. This we remember occurred
at the university where William Holdsworth, Rupert Cross and Peter Burkes taught with
such distinction. We’re privilege to have those skills deployed in our favour tonight
and would you please join with me, welcome Justice Edelman. (APPLAUSE) Justice Jackson, thank you very much. Distingushed
guests, ladies and gentlemen. It was a frosty morning in England in Oxford in the Hilary
term in 2009. About 40 students had gathered outside the law board room they were waiting
for the librarian to open the doors to 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 of the Australian
graduate students, who was a group tend not to be lacking in confidence, turned
to the older man and introduced himself. The older man shook the Australian’s hand said
“I’m Tom”. “And what are you studying, Tom?” said the Australian graduate. 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 he could hear the
reply from Tom. Tom, or Thomas Bingham, or Lord Bingham of
Cornhill, was described in Professor Sands’ obituary as the greatest English judge since
World War II. 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’s fitting i think 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. Indeed, I suspect that in 100 years’ time, it’s very unlikely that scholars
of the law will recall the name Bingham alongside the names of Coke, Mansfield, Eldon, Blackburn,
Atkin or Denning. Bingham himself 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 that his speech reminded him of PG Wodehouse’s
reference in his book Summer Lightning to the preface. 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 one hundred best books … called Summer Lightning. The real reason why it’s fitting to conclude
this series with a speech about Lord Bingham is because he has left a legacy of what it
means i think to combine 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 Bingham was born in London on the 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, for their daughter 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 Thomas Henry Bingham sent a telegram to his son and daughter in law. It had only
two words. “Omit O’Neill”. In the brief time I have allotted this evening
I will skip over some of the detail of Bingham’s early years at school. Surfice to say that
his Wikipedia page is entirely inaccurate. That entry describes him has having been considered
as the brightest boy in 100 years at his school. In fact it took several years before Bingham’s
academic acumen was recognised. He won various literature awards but his main contribution
was to the extra curricular life of the school. The debating society, the school magazine,
the library and as a prefect. He initially flirted after school with the idea of ordination,
but eventually he decided to apply to read history at Bailliol. He applied in 1951 to Balliol to read history.
Balliol was his first choice for very odd reasons. His housemaster, who was a particularly
unpleasant man had said to Bingham: well b…b..Bingham of b … b … Balliol, I think it must be.
So it was on the whim of this alliteration that Bingham sought entry to Balliol and Oxford.
He 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
recall being interviewed by Christopher Hill. I had a passion for Cromwell and, to this
day, I kick myself that when I was asked who Cromwell most resembled in modern days, I
froze. The answer, of course, was Lenin. Bingham
got a scholarship but it wasn’t a very good one. He wanted to obtain a better scholarship.
So he remained at school for a further year. But his December 1951 attempt at a higher
scholarship was unsuccessful. He still didn’t go straight to Oxford. Following
World War II, he spent the first two years in National Service. During his interview
with a recruiting sergeant, Bingham was asked if he was a good scholar. He was still recovering
from only having received a minor scholarship at Oxford and so he replied, Well, not really,
to which the sergeant responded, Well … can you read and write at all? After flirting with the possibility of a career
in the Army, he then commenced at Balliol in Michaelmas in 1954 to read for a PPE Politics,
Philosophy, and Economics. AB Rodger, the economic historian had had written to JP Corbett,
the PPE tutor in 1952 and said “I think he has quite the wits to get a respectable
second in the PPE”. Bingham soon switch to history where he graduated with a very
respectable first. He won the Gibbs Prize for Modern History,
by examination, early in his final year. 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 you richly deserve it.
Here in Balliol we are very much in your debt, both by doing so well in scholarship but by
also taking the part that you did in its general life. If all undergraduates would put as much
into the place as you did, the sky would be the limit! As with his school life Bingham
was enthusiastically involved in many aspects of extra curriculum university life. John Keegan, the military historian and friend
of Bingham said that, “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”. In one university long vacation Bingham decided to climb Mont Blanc. He decided
to set a very good time. He completed it in possibly one of the fastest times then achieved
by an amateur. In a glimpse into his extraordinary drive he counted the following of this climb:
I’m not a colossally serious climber but I’ve always loved the mountains, and one
can become rather competitive. I remember when climbing Mont Blanc that 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 reach them on the way down. We did the latter. I suppose
I can be rather ruthless at times. Bingham briefly contemplated an academic career
after Oxford. He applied for the All Souls College Prize Fellowship, but missed out.
So after having contemplating initially ordination then contemplating a career in the Army and
contemplating an academic career. He eventually went to the bar. He’s another one of those brilliant English
lawyers who like Jonathan Sumption stand in the path of acceptance in England that a lawyer
ought to have a law degree. Bingham read for the Bar as an Eldon Law Scholar
he passed as top of his Bar exams and was called by Gray’s Inn in 1959, having been
admitted already to the Inn in May 1956. He won the Gray’s Inn’s Society’s prize
for a first-class pass in the Bar finals, he won the Arden Scholarship, and a Stuart
Cunningham Masakic KC scholarship. He then began his pupillage under Owen Stable in January
1959 and he eventually accepted tenancy at Fountain Court. At that time, the head of
Fountain Court was Lord Scarman and it will come later to some of the parallels between Lord Bingham and 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 himself describes
his early days, as in the following terms, 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 a 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. But if it was a little bit further out you were paid and bit more and you conducted a jury trial at the London Sessions or the Old Bailey. 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 long for Bingham
to attract some serious work in public and commercial law. By 1968, he became the junior
standing counsel for the Ministry of Labour. He occupied that position for four years.
He was also a standing counsel at the Bank of England. He soon came to the attention of Lord Denning,
who was then Master of the Rolls. Melford Stevenson who was the previous head of chambers
at Fountain Court, had put a strong word in also with the Lord Chief Justice, Lord Widgery.
The result of this attention was that, in 1972 at the age of 38 Bingham took silk. He
was the most junior of barristers to be appointed silk that year and one of the most junior
of silks. However, despite his relative youth, he developed an extensive practice rapidly
and became a Recorder in 1975. Within only those first few years of taking silk,
Bingham rose to 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 Bingham
as one of the three “outstanding advocates” of their generation. Lord Phillips describes
the other two as being Robert MacCrindle, Lord Alexander. He gives the following contrasting
description of the styles of the three. 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. But
Tom’s approach was to present a series of propositions, each one honed with precision
and supported by authority, the effect of each item 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 extremely methodical. In 1977, having been silk for five years, he was also
appointed the head of an enquiry into allegations of breaches of United Nations trade sanctions
against Rhodesia. 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. Although no prosecutions followed from his findings, his work was widely
lauded. In 1979, he was made a bencher of Gray’s Inn and 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 had 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. It was only then
did he decide to renovate the cottage to include running water and sanitation. Bingham’s
generosity, and his lack of concern for material wealth, was also shown in chambers. He focused
very heavily on the pupils in chambers. He would involve them in the discussion of legal
problems, take them to after work drinks the other members of chambers and 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 competition law. In a conference with the
solicitors and clients, Bingham turned to his junior and said “right, well we will
need the usual summons and the affidavit in support”. Phillips’ face fell. Bingham
said nothing. Only when the solicitors had left did he turn to Phillips and say quietly,
“don’t worry, I’ll draft all 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, cases get longer, which makes them more burdensome
and in a sense more worrying, particularly if they can go 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: judges ought to consider going to the bench at an earlier age and that the task of selecting
future Justices is not to choose seasoned judges nearing the end of distinguished careers
to spend two or three years before retirement but to choose able
younger candidates who would have time to mature and develop in office. 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 the case of Rhesa Shipping v Edmunds, which was controversially overturned
by the House of Lords. The appeal rested on an inference that had been drawn by Justice
Bingham based on 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 Lord Bingham. He’d also gone to the bench, this time 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 Justice Bingham: 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 Justice Bingham
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 BCCI disaster, BCCI, 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 his report was published,
an action was commenced by 6,231 depositors against the Bank of England. Relying upon
Bingham’s report, Justice Clarke and then the Court of Appeal struck out an action by
the 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 for them to have regard to Bingham’s report and they overturned the
strike out decision. Over the course of 12 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.
It was only after day 256 of the trial, that the liquidators abandoned their claim. The judgment
granting indemnity costs is one of the most scathing judgments ever written by an English
judge. After Bingham’s death Lord Phillips lamented that maybe the House of Lords should
had 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. His appointment was unexpected particularly because
of his limited experience in criminal law. It was met with some opposition, including
that of Lord Taylor, on the basis of his lack of experience but misgivings were very soon
dispelled. He sat regularly as Lord Chief Justice as a trial judge in order to regain
the feel of trial and sentencing procedure and he would often travel out on circuit. In 2000, Bingham then accepted Lord Irvine’s
offer of Senior Law Lord. After he was appointed Senior Law Lord he’d served four years as
Lord Chief Justice and four years as Master of the Rolls. Traditionally the role of the
Senior Law Lord went to the longest serving Law Lord at avoid the issue that are created
by leapfrogging. In 2000, that person was Lord Slynn. But Lord Slynn had been tainted
with the scandal of the Pinochet affair. He’d been the presiding judge in the first
Pinochet case and it was said that Lord Hoffmann had spoken to him about Lord Hoffmann’s
links with Amnesty International prior to the hearing and they had both decided that
disclosure to the parties was not necessary. The appointment to Senior Law Lord was, technically,
a step down from Lord Chief Justice for Lord Bingham. But it placed him in a position to
influence the operations of the House of Lords at a time of great flux. He’d also been
finding the role of Chief Justice burdensome, because of the administrative workload and
the heavy emphasis on crime. He 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 he retired
in September 2008, the only three of the Lords who were on the Court when he commenced were
Lords Hoffmann, Hope, and Saville. Bingham was a firm believer in reform 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 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, saw this as a rare example of when a British court can
be eponymised. Bingham 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 he’s even convening
nine-judge benches in exceptional cases, something that had never happened since 1910. He 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. Certainly
none of them would permit their research assistants to draft judgments like the clerks did on the
United States Supreme Court, but some of them would 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 by which the House of Lords dealt with matters. Appeals were now heard
over only one or two days, with the average time for delivering judgment reduced to around
two months. The reduction in delivery time for judgments was in
large part due to Bingham’s contribution. After 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 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 some cases where the court was divided, he was
in the minority and those cases amounted to almost 30%. In conferences after the appeal
hearing again he did not attempt to dominate. Instead, he rigidly adhered to the convention
that as the senior judge he should speak last. Lady Hale has remarked that when judges made
their comments after a hearing, junior to senior, they rarely knew what Lord Bingham
was going to say. Stephen Sedley has described the occurrence as follow: 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 certainly
on the Federal Court I’ve never seen a departure from this same tradition of respect and independence
in appeals. The example involves the House of Lords decision in Crown 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 ever notifying asylum seekers.
Lord Scott, the junior judge, spoke first. His opinion was tentative and he acknowledged
he had several changes of mind. He said that he would probably 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’ve 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 didn’t 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 in 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” he said. The interviewer then observed that there might be a vestigial
snobbery in some of his fellows, who like to be lords. Bingham replied “I don’t
give a (pause) I’ll edit his remarks at this stage whether my peers do or not”. 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, although he was an
advocate for the development of the Supreme Court, he cautioned against a move towards
an American style court he was opposed to any ability of the Supreme Court to challenge
the doctrine of parliamentary sovereignty by striking down acts of parliament. I will
come shortly to his strong views about parliamentary sovereignty and something of a contradiction in
his philosophy of judging. In the previous lecture in this series, Justice
Douglas rightly observed that most judges engage in the business of judging. Without
feeling the necessity to reflect in great length on the boundaries or philosophy of
their role. Even fewer publish such reflections. Bingham was one of those few. Brian Simpson
has speculated that this places Bingham in the ranks of a “very small fraction of one
percent” of those who’ve held judicial power over the last millennium and engaged
in very 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 in Australia
are Sir Owen Dixon, Dyson Heydon, Michael Kirby. In the United States, the judge who
has written more about this subject than any other in fact probably more about any subject than any other judge is Judge Posner. Some of Bingham’s main reflections on judging
were published in four of the that he gave. The first was a lecture he gave in Oxford
in 1990 entitled ‘The Discretion of the Judge’. The second was an essay on ‘The
Judge as Lawmaker’ in a collection published in honour of Lord Cooke in 1997. The third was his Maccabean
Lecture on Jurisprudence in 2005 and the fourth was his Hamlyn lectures in 2010. In the first of his essays in 1990, Bingham
delivered it in Oxford focusing on 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 his speech began with an anecdote of what had caused Bingham
great concern: a judge of my acquaintance once told me he said that when, in the course
of trying a case, whenever he encountered a 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 Bingham’s speech was to rail
against undirected and unreviewable discretions. In 1997 building on this earlier essay Bingham
then posed four models of a judge. The first was those judges who say that it’s
their job to apply the law, but never to create it. The second is those judges who say that
they do create law but that they should pretend that they do not. The third is those 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 and the fourth
was the judges who say that they have a role to create law but that the important question
is how they exercise this role and when they ought to exercise it. Unsurprisingly, Bingham located himself as
a judge of the fourth variety. By the time of his 2005 Maccabean lecture,
Bingham turned to the manner in which judges should exercise that role. He articulated
the importance of what he described as the “elusive boundary between legitimate judicial
development of the law on the one hand and impermissible judicial legislation on the
other.” The focus had built on Bingham’ reflections
15 years ago concerning judicial discretion. One of the most obvious constraints upon judicial
discretion is to develop the law in the 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 constraints that are built in with the idea of discretion.
Bingham didn’t express the matter in precisely these terms but the tenor of his article was
that the more constrained the discretion of a judge, the less of the role of the judge
resembles that of a legislator. But although Bingham railed against unrestrained discretion,
he believed that a judge should have a significant margin for discretion. In a moment I will
talk mainly of his enlargement of discretion in public law, but it’s evident in
his approach to private law as well, particularly in relation to equity. In considering the divide between legislation
and adjudication, Bingham also emphasised the importance of reasons and of the judge
explaining honestly the considerations that actually motivated his or her reasons. It’s
not entirely clear what Lord Bingham meant by the conception of an honest explanation. For
example would his conception of transparent honesty be violated by the judge who reached
a conclusion based on a general sense of a right decision but 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 raised 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. His view was probably consistent with Brian
Simpson’s assessment 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 in his essay
on Lord Bingham when two lovers embrace in the moonlight it will probably convey more
to the bystander to use the 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 Lord Bingham’s lectures, the Hamlyn lectures in 2010, were perhaps his 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. He regarded the Human Rights Act 1998 as the Blair Government’s
greatest achievement. He was the first senior judge since Lord Scarman to speak publicly
on the incorporation of the European Convention into UK Law. His responses, when challenged
about his support of the Act, were caustic. He would ask which right the UK could do without:
could the UK do without the right to life? The protection from torture or from inhuman
or degrading treatment? And each time he would challenge the interviewer to explain which
right they would do without. In 2009 before Lord Bingham’s Hamlyn lectures,
Lord Hoffmann had brought his razor sharp buy into the issue in a piece that cut very
deeply into Bingham’s views. Lord Hoffmann published an article 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 probably 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 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 the first of November, 2008 there were 100,000 individual petitions that were pending before the ECHR.
60% of them were from five countries: Russia, Turkey, Romania, the Ukraine, and Italy. Every
one of these 100,000 petitions, if properly filled in, was required to go before a committee
of three judges to determine admissibility, and then before a committee of five if admissible.
This is obviously a massive backlog. Moving from the practical to the theory, Hoffmann
then gave a number of examples of decisions of the ECHR which were, in the language of
Bentham, cases that he considered to be teaching grandmothers to suck eggs. I will just describe
one. This was the case of Saunders v United Kingdom. In that case the ECHR had held that
Mr Saunders’ right to a fair trial had been violated because the evidence against him
had included 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 it was found to have infringe his privilege to remain silent. Lord Hoffmann
expressed some polite surprise at the failure of the ECHR to consider any part of the 200
year history of similar provisions in bankruptcy and company law before the ECHR pronounced
on the infringement of the privilege to silence. He also remarked of the consequences of the
decision. A subsequent case had 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 vehicle
to say who had been driving it, or alternatively to pay a fine. In the domestic courts, Lord
Bingham had attempted to dispose of that case summarily. But in Europe it had proceeded
all the way to the Grand Chamber before finally being dismissed and only by majority. One
of the dissents said the following of the 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. If
this is the case, maybe the time has come to review speed limits and set limits that
would correctly reflect peoples’ needs… It’s 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 that was breathed into that rule by the Strasbourg
court after Parliament, the Law Commission, and the English courts had all 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 in relation to night flights from Heathrow.
Lord Hoffmann mused that a case involving flights from Heathrow sounded “about as
far from human rights as you could get”. I pause to say that Lord Hoffmann also didn’t
mention the decisions of the ECHR which nearly abolished the jury system, or the extreme
controversy surrounding the decision of the ECHR concerning prisoners’ voting rights. So by the time of Lord Bingham’s 2010 Hamlyn
lectures, he needed to responded in his view to these staunch criticisms. He did so in
his usual polite and respectful way. He instanced a number of ECHR decisions which he then went
on to defended in great detail: a requirement for a legal framework to justify the interception
of personal communications; the requirement for the State 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.
But Lord Bingham finished with the decisions of the Strasbourg court concerning intimate
and sexual behaviour in relations to convention violations by laws which criminalised homosexual
behaviour and laws which has imposed a blanket policy where the Ministry of Defence had excluded
homosexuals from the armed forces. Lord Bingham concluding flourish, relied upon the European
decision in Smith & Grady, perhaps somewhat ironically. In the Court of Appeal, Lord Bingham
had himself upheld the policy of the UK army of not allowing gay men or lesbian women to
serve. The European Court had subsequently found that the policy was a breach of the
Convention and Lord Bingham lauded that decision. Lord Bingham had 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, that a purely national application
of human rights, as Lord Hoffmann had proposed, would “inevitably lead to significantly
different application between state and state”. Bingham continued: “Lost would be the ideal,
boldly proclaimed in 1948, imperfectly realised but noble in conception, that there are some
rights so basic they should be enjoyed by everyone everywhere.” Perhaps Bingham’s best-known judgments were
in this area of Human Rights. It was the 47-page lead judgment that he delivered in the Belmarsh
Prison case in 2004 for which he is perhaps most famous. Lord Bingham was in the majority in that case
in holding that the post 9/11 powers 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 section 23 of the Anti-Terrorism
Crime and Security Act 2001 – had infringed the Convention right to security and liberty
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,
he said: 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 section 6(1) of the Human Rights Act to which he referred.
What does it 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 the law? A jurisprudence is now developing
concerning “disapplication” of law. But this was not the concern in Belmarsh Prison. Following his judgment, Bingham was heralded
by The Guardian as a “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. He 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 himself was applying. But perhaps this was why the press did not
see his judgment the way he saw it. Kettle who was the author of the Guardian article, concluded
his article by saying that “Lord Bingham’s revolution may be poised for victory. We will all be winners if it succeeds”. Bingham’s approach continued in the second
Belmarsh case although in the case he was in a minority. He held that the onus was on
the government to prove that evidence had not been obtained by torture and not on the
party who was alleging it. Lord Bingham remarked, in words of unusual although 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 which rage usually over very extreme and unrealistic examples. 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 greatly assist the debate. As Justice Dawson explained in this country borrowing
sub silentio from Dicey, “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 very famous 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, in the challenge to the Hunting
Act 2004 in Jackson v Attorney General, Lord Steyn, Lord Hope and Baroness Hale all treated
the rule of parliamentary sovereignty in the same way as a common law rule which might not
apply in some circumstances. Lord Steyn suggested that judges had created this rule of common
law and so they might, in particular 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 had characterised the arguments of these three of Lord Bingham’s
former colleagues as “unargued and unsound”, “historically false” and “jurisprudentially
absurd”. Lord Bingham himself would have had difficulty using these expressions. So he
did them through the medium of a commentator. His point, relying heavily upon work also 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:
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. Bingham retired in 2008. Retirement did not
slow him down. While many might have expected him to retire quietly to his cottage in Wales,
he began a new life in the law. Perhaps this was unsurprising. He commented as early as
2003 that he would hate to be idle at this stage of his 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, but 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. He began to deliver public
addresses, he gave a very famous speech in 2008 denouncing the legality of the United
Kingdom’s involvement in Iraq. Perhaps the strongest criticism of Lord Bingham
was that he was a little outspoken in public on policy issues such as the Human Rights
Act. There are however some judges today not just in England also in Australia who believe
that a judge in a leadership position should speak out on issues of policy. One difficulty
with this view may be that it weakens the judge’s claim as a neutral arbiter of technical
issues. As one of Lord Bingham’s later colleagues remarked ‘it’s important for the law to
be as boring as possible’. By this remark I think what was meant to emphasise was that
the skill of great judges is technical legal competence rather than views on policy
the latter 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 questions such as the role of equity concerning assignment of contractual rights will divide
a court according to the political views of its judges. But two points should be emphasised which
militate against any image of Bingham as being overtly political. The first is that in hindsight
we can see from cases like Smith & Grady which was the gay and lesbian rights to serve in
the armed forces or Anufreijeva that if Bingham was a political liberal then he reached decisions,
by the proper application of the law as he saw it. Even when that application must have
been anathema to him. Secondly, apart from his extra-curial advocacy
for human rights legislation, Bingham was very guarded about any party political views
that he held. He was sometimes described as a small “l” liberal, but when he was asked
about this classification he just smiled and said well, “I wouldn’t want to be called
illiberal”. When the Telegraph described him as being a Tory supporter, his son-in-law
responded that he had no idea how Lord Bingham voted. As a modern judge, Lord Bingham’s greatest
virtue was to combine attributes that I think are rarely 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 and 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 also 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 for Lord Hoffmann who’d been known to circulate
judgments even during a hearing. But Lord Bingham never wrote to be tactical and he
never wrote 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 including sometimes with the language he used, and perhaps, although it might be said spending weekends
without running water or sanitation is not even 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 his 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. Thank you. (APPLAUSE) Lord Bingham was a remarkable judge and legal
writer. We’ve been privileged to have Justice Edelman capture just how remarkable he was.
His career is in part testament to the continuing importance of judges of common law of great
intellect who uphold human and individual rights. One of the books Lord Bingham published
was entitled ‘The Business of Judging’ published in 2000 and it included an essay entitled
‘Who then in law is my neighbour’. Where his Lordship analysed the English cases up to
1995 against Lord Atkin’s famous question. Not surprisingly from what you’ve head he
disagreed with the retreat in the then case law from the High Watermarks established by
Anne’s case. And the concept of proximity. Those developments were called by our High
court the imperial march the Tort of Negligence in one case. But the time he wrote this essay
Lord Bingham’s views didn’t accord with the House of Lords or our High Court. But
I mention it because the lucid analysis and the measured argument of which you’ve head
Justice Edelman speak were typical of his writing. Even when supporting the column in
retreat he was able to make sense out of chaos. It’s appropriate also I think as Justice
Edelman mentioned he was instrumental in the abolition of the judicial capacity of the
House of Lords. It’s worth mentioning he succussed where Lord Selborne had failed in
1847. Perhaps in 100 years Bingham won’t be remembered. He was not the self-promotor
but perhaps his extra judicial writings will see him remembered. I hope so. I suspect we
all agree that Tom Bingham was an exemplary judge. We’re all very grateful for Justice
Edelman’s speech this evening. It is the sort of lecture that this lecture series has
now I think stamped a high watermark for others to try and achieve later on. Would you join
with me in thanking his honour and on your behalf I offer a small gift of our appreciation. (APPLAUSE)

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