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Tuesday, 14 September 2010

Lord Bingham of Cornhill

An obituary written for Halsbury's Law Exchange

Lord Bingham of Cornhill, called by the press “one of the outstanding English judges of the 20th century” and “the greatest judge of our era”, has died aged 76.

He was the first judge in history to hold all three posts of Master of the Rolls, Lord Chief Justice and senior Law Lord.

His career in the law was marked with distinction throughout. After finishing top in his Bar exams in 1959 he was called by Gray’s Inn. He took silk in 1972, aged just 38, and was appointed a Recorder of the Crown Court in 1975. In 1977 he headed the inquiry into alleged breaches of UN sanctions against Rhodesia.

In 1980 he became a judge of the Queen’s Bench Division, and was elevated to the Court of Appeal in 1986. Whilst on the Court of Appeal he was appointed to head a second major public inquiry, into the collapse of the failed bank BCCI.

He became Master of the Rolls in 1992 and Lord Chief Justice in 1996, before being appointed senior Law Lord in 2000. Neither of the second two changes of role was entirely without controversy: he had lacked any significant criminal experience before becoming Lord Chief Justice (a post many at the time thought should have gone to Lord Justice Rose), and he was the first person to be appointed senior Law Lord, a post which previously had always been held simply by the longest serving Law Lord. Lord Bingham, however, always dismissed any suggestion that the latter appointment had been to put their Lordships’ house in order.

As senior Law Lord he criticised the form of modern judgments for their “length, complexity and sometimes prolixity”, arguing that

whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio.

He was not, however, able to effect any substantive reform in that respect: throughout his tenure and to the present day the House of Lords, and now the Supreme Court, has not as a consistent practice handed down judgments with one clear majority ratio, despite the lack of any apparent barrier to doing so.

Lord Bingham became known as a liberal judge, through his support for the introduction of the Human Rights Act 1998, and his subsequent judgments in a number of high profile cases concerning the legality of the anti-terrorist measures introduced by the government following the September 11 attacks on the United States (see eg A and others v Secretary of State for the Home Department [2005] 3 All ER 169). He also supported the establishment of the international criminal court, a not uncontroversial move which some found akin to putting the cart before the horse, given that a universally agreed international criminal legal code was lacking. When asked if he was a liberal, however, his dry response was that one would not wish to be known as illiberal. He also described the value of liberty as being of “immense importance.”

Following his retirement in 2008 he was more openly controversial, declaring that the Attorney-General’s advice to the Prime Minister on the legality of the invasion of Iraq had been wrong (he used the measured term “flawed”) because (i) the evidence that Iraq had failed to comply with UN sanctions was insufficient; and (ii) it was for the entire Security Council to make the decision (on which see however Stephen Hockman QC’s HLE blog here). He also published a book entitled The Rule of Law, which was well received. In one highly positive review the Guardian called him “one of our greatest crusading judges”.

Lord Bingham died on 11 September 2010.

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