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The death of Lord Bingham on 11 September 2010 is the loss of a giant in the legal world. He was the first judge successively to hold the three offices of Master of the Rolls, Lord Chief Justice and Senior Law Lord.  But it is not these remarkable achievements alone for which he will be best remembered.  Despite having had a largely commercial practice at the Bar, his legal legacy will surely be grounded in the body of human rights jurisprudence which he created from 2000 until his retirement in 2008. It may even be that, over time, the period of liberalism in the House of Lords over which he presided and which has already had such a profound effect will come to be known as the ‘Bingham Court’ – reminiscent of the great Warren Court of the United States Supreme Court.

It is an invidious task to choose his finest human rights case. But when interviewed he selected the Belmarsh case (A v Home Secretary [2005] 2 AC 68) as the most important he had decided in his career. He said, with characteristic understatement, that “It was the first serious challenge under the Human Rights Act, and one felt the stakes were quite high.” Tony Blair was Prime Minister at the time of the decision and Lord Goldsmith was still the Attorney General.  In holding that the detention without trial of foreign nationals suspected of terrorism was disproportionate and discriminatory,  he was keen in his Opinion to emphasis the constitutional importance of the Human Rights Act:

“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”.

He went to say that although the Attorney General, on behalf of the government, was entitled to insist on the proper limits of judicial authority, he was “wrong to stigmatise judicial decision-making as in some way undemocratic”. Lord Steyn later characterised that as a “magisterial rebuke”. Personally, I will never forget the atmosphere in the Lords’ Chamber when judgment was handed down in the Belmarsh case. The judgment had not been circulated in draft in advance and it did feel something like a legal penalty shoot-out.  The nine-judge Court had not given the slightest indication of its view during the hearing and there was no doubting that Lord Bingham fully appreciated the significance of the moment when he cautiously gave the first summary of his Opinion.

Although his Opinions in human rights cases were generally measured in tone, he was undeniably a passionate supporter of the Human Rights Act.  In his address (when he was Lord Chief Justice) to the House of Lords during the passage of the Human Rights Bill, he famously quoted Milton’s Areopagitica in support of the proposed progressive reform: “Let not England forget her precedence of teaching nations how to live.”

He felt particularly strongly about access to justice and the natural justice aspects of human rights cases.  In the second appeal by the Belmarsh appellants (A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 at [59]), in which the Lords unanimously rejected the admissibility of evidence tainted by torture, he gave a tour de force of the protections afforded by the British common law in addition to those provided by the ECHR. But on the burden of proof issue he disagreed with the majority, who held that the person wishing to challenge the admissibility of the evidence had to prove that it had been obtained by torture. “It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet” as he put it so forcefully. And, more generally, he was obviously deeply troubled by the expanding use of special advocates. In a post-retirement interview he explained:

“Liberty is losing out at the moment. Extraordinary inroads are being made into principles that would once have been regarded as completely inviolate, such as the growing practice of putting material before some decision-making tribunal or judge that the defendant never sees.”

The recurrent humanity in his judgments was all the more welcome and persuasive given their clinical and unassailable logic.

Yet Lord Bingham also recognised the limits of human rights law.  He somehow managed to quote Hamlet in a road traffic case, albeit a very significant one:

“The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks / That flesh is heir to.’ ” (Brown v Stott [2001] 2 WLR 817, 835).

It was immediate to everyone who came into contact with him that he was both a great mind as well as an exceptionally talented judge.  Like the best judges, in addition to his formidable intellect he was an extremely good listener.  He always commanded his court with absolute authority yet without overtly wielding the considerable power he was invested with.  He was unfailingly courteous and patient.  Many eminent advocates have remarked that he managed to control the hearing of case more by the careful use of tone of voice rather than any irascibility.  The was a certain type of ‘yes’ which he uttered which most definitely meant ‘move along swiftly, please’.  Perhaps the best moment for counsel in a hearing before him was, whether he was seemingly with or against you, when he might helpfully distill your inelegant points into an impossibly concise summary which could be gratefully adopted with alacrity.  The worst moment was probably his uncanny ability to construct a devastating counter-example which Counsel had not thought of.  And you often felt as though, even after the most complex of cases, given an hour or so he could have given an extempore judgment.

Although a religious man (he once contemplated a career in the Church), his own personal beliefs did not enter his opinions which are a model of clarity, balance and erudition.  Their hallmark, for me, is a sort of austere beauty.  His Opinion in the Belmarsh case, for example, did not contain soundbites that the press immediately seized upon but is unquestionably a masterpiece of legal analysis.

His dissenting opinions were as interesting as when he was in the majority. And not just because if he disagreed that immediately called into question the correctness of the majority.  In a deeply divisive decision of a nine-judge Privy Council concerning the mandatory imposition of the death-penalty, for example, he was scathing and felt compelled to say that “We consider the decision of the majority to be unsound in law and productive of grave injustice to a small but important class of people … . It is in our opinion clear that the interpretation … which commends itself to the majority does not ensure the protection of fundamental human rights and freedoms, degrades the dignity of the human person and does not respect the rule of law.” (Matthew v The State [2004] UKPC 33 at [34]).  And that was so even though the usual practice is not give dissenting opinions in the Privy Council.

Somewhat unexpectedly, he disagreed with the majority in R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, who held that the Human Rights Act did apply to prisoners held in British detention facilities in Iraq.  He also strongly believed that parliamentary supremacy was absolutely fundamental to the rule of law and separation of powers. Contrary to the views of Lords Steyn and Hope and Baroness Hale in the Hunting Act case (R (Jackson) v Attorney General [2006] 1 AC 262), he believed that the sovereignty of parliament meant that a direct legislative attack on the rule of law could not be prevented by the judiciary alone. And he went out of his way to defend his views in his excellent Rule of Law book, published shortly after his retirement.  Apparently he was particularly aggrieved at being in the minority in R (YL) v Birmingham City Council [2008] 1 AC 95 on whether the Human Rights Act applied to privately-owned care homes. The immediate consequences of the decision were reversed in subsequent legislation.

Despite considerable provocation, he waited patiently until after his retirement to give his views on the legality of the Iraq war.  And for many it was well worth the wait. In November 2008, he explained in a closely reasoned Annual Grotius lecture that in his view the Iraq war was a “serious violation of international law”.  He later explained that “I wouldn’t have dreamed of making this statement at a time when I could still have found myself in a position to rule on this question judicially, which seemed a possibility.”  I find the latter comment particularly tantalising because the House of Lords had declined to permit the legality of the Iraq war to be a potential issue in the case which came nearest to considering the point (R(Gentle) v Prime Minister [2008] 1 AC 1356).

He was a consistent supporter of the creation of the UK Supreme Court. In 2003 he was one of four Law Lords who backed it, as against six who opposed it.  Despite the haze which still remains over precisely how the Court came into existence, it is difficult to believe that it would have seen the light of day if the Senior Law Lord had opposed it in principle.  No doubt he would have liked to lead the Court, even for a short time, and the timing of his retirement is therefore somewhat unfortunate.  But I am sure he would have been proud of the Court’s unqualified success in its first year under the expert leadership of Lord Phillips.

He will be sorely missed for many, many years to come. His legal legacy is undeniable and we can all be proud and privileged to have had such an eminent jurist and humane man heading our courts.

Alex Bailin QC, Matrix