Lives of the Law: Selected Essays and Speeches 2000-2010

Lives of the Law: Selected Essays and Speeches 2000-2010
Tom Bingham
Oxford University Press, 448pp, £19.99

Tom Bingham hated making after-dinner speeches - he had a puritan's distaste for low comedy - and his efforts when chief justice were as excruciating for him as for his audiences. But his lectures, and the occasional law journal articles in which he reworked them, were another matter. Freed from the tyranny of the facts in his decided cases, he could analyse legal developments with his trademark precision, which was illuminated by his love of history and philosophy and his capacity for ironic wit. Some of the papers in this collection will be of educational importance, too: there can be no better way for students to learn about Magna Carta and habeas corpus, and recent constitutional changes, than by entering the mind of the greatest judge of our generation.

Bingham played a vital role, as the presiding law lord in the period covered by these essays, in recasting the common law to achieve greater consistency with human rights. He inherited a body of judge-made law that was not fit for purpose, thanks to a tradition that excluded moral values and left many victims of state bloody-mindedness without remedy.

Before the corrective mechanism of the Human Rights Act became available to the judiciary in 2000, "reform" had been skewed by the brilliant but egomaniacal Lord Denning, who dragged the law of contract and tort into the 20th century but whose reactionary political prejudices denied relief to trade unionists, prisoners, immigrants, dissidents, women and homosexuals - and heterosexuals too, for that matter, if they were active outside marriage. It took Bingham's gentle genius to infuse the common law with the spirit of human rights, making it less discriminatory and more user-friendly, enabling the courts to better balance the power of government (generally, the decisions of Whitehall bureaucrats) with the rights of citizens.

Bingham was no radical, for all the criticism heaped upon his court by ignorant politicians such as Michael Howard and Charles Clarke. He was, however, a Benthamite - this book ends with an invocation of Jeremy Bentham's continuing presence - whose passionate belief in the separation of powers encouraged the creation of the Supreme Court (and its physical separation from Westminster) and the division of the judicial and political functions improperly fused for centuries in the office of Lord Chancellor. These and other reforms he canvassed as a matter of principle, at one point even asserting that "it is a long time since any Lord Chancellor was accused of favouritism, political or otherwise" - overlooking the justified criticism of Lord Chancellor Hailsham, particularly by the NS, on exactly that score.

The value of this publication is to provide a modern-day exposition of the best thinking behind recent constitutional changes. But these "selected" essays have perhaps not been selected enough - the volume could have been reduced to a more acceptable length by focusing on Bingham's constitutional philosophy rather than taking an 80-page detour into speeches on tort, commerce and employers' liability. The core is found in early chapters on politico-legal history (Christopher Hill would have been delighted to see how he inspired this student with an affection for the Levellers' Agreement of the People and the Instrument of Government of 1653). The most topical pieces show Bingham debating (with himself as well as others) the pros and cons of a written constitution. He claims to be an agnostic on the issue but he gives all the good arguments to the codifiers. We need a written constitution "to enable any citizen to ascertain the cardinal rules regulating the government of the state of which he or she is a member". It would serve to teach our children well, and encourage unity in our "polyglot, multicultural, religiously diverse, plural society" especially if it incorporated a bill of rights "guaranteeing to everyone - particularly the poor, the disadvantaged, the unpopular members of despised minorities - the same rights as everyone else".

The once-lively tradition of the judicial biography seems to have faltered - perhaps through academic inertia (although Denning may have killed the genre by writing four autobiographies). Oxford University Press should fan the flames of Bingham jurisprudence by commissioning a book about the great cases in which he led the law lords - for instance to exclude prosecution reliance on evidence obtained by torture, to put a stop to indefinite detention of terror suspects and to secure a public-interest defence against defamation actions by the powerful.

He faltered by refusing to overrule the government's order to stop the Serious Fraud Office inquiry into corrupt dealings between BAe and the Saudis. This failure to uphold the rule of law because the skies might otherwise fall was based on last-minute "lives at stake" evidence that should have been discredited, but wasn't. This judgement remains a blot on the Bingham casebook that deserves a fuller explanation, in light of his own (and Denning's) favourite aphorism from the 17th-century writer Thomas Fuller: "Be you ever so high, the law is above you".

Bingham points out that codification would "inculcate a constitutional sense and awareness which are now lacking". As tabloid journalists turn from hacking telephones to hacking the Human Rights Act (to which they owe their freedom of speech), and a home secretary can feel confident enough to utter a carefully crafted lie about an asylum-seeker's cat, Bingham's case for providing a more solid basis for liberty becomes pressing. As he points out, in answer to the complaints of successive home secretaries about "unelected judges" overruling them, "there are countries in the world where every judicial decision finds favour with government, but they are not places where one would want to live".

Geoffrey Robertson, QC, is head of Doughty Street Chambers. His books include: "Freedom, the Individual and the Law" (Penguin)

This article first appeared in the 05 December 2011 issue of the New Statesman, The death spiral