Back in 1990 Sir Thomas Bingham had barely started to accumulate what would become a dazzling array of gongs and titles, including Master of the Rolls, Lord Chief Justice, Senior Law Lord and Knight of the Garter. But I had done enough homework on my potential father-in-law to know that our first meeting would be no pushover.
But I proved to be quite wrong. Tom was never anything but Tom, from the outset. He and his wife Elizabeth were so welcoming that I was quickly put at ease. As I got to know them, and Kate’s brothers Harry and Kit, better I realised that this combination of brains, charm and utter straightforwardness ran through the entire family. I had dimly expected the usual careful negotiations, the hidden neuroses, the mine-sweeping of familial acceptance or rejection. But this family seemed to have no hang-ups at all.
Not that everything was straightforward, however. From the outset Tom evinced an encyclopaedic knowledge of my family and its history, including some of its more outré members. I doubted somehow whether they would enhance his confidence in me. And then there was the small matter of language. The Binghams conversed in a barely intelligible linguistic home brew featuring The Hun (Attila, a.k.a. the garden rotavator), Tippecanoe and Tyler Too (kayaks, cf. the 1840 US presidential election), and Hokkaido (the strimmer). The suffixes “-ulator” and “-yman” (pl. “-ymen”) were applied wherever possible, so that one might be invited to enjoy the chestymen in the stuffing for the Christmas turkulator. Names were invariably shortened to Charley Charlesworth, say, or Wiggy Wigington. Cowpats, horse manure and the like were known as douvers. A call of nature was, equally but inevitably, a Harry Slashers. To this strange idiolect was added an array of formulas for specific occasions. On arriving at a restaurant, Tom would invariably lean back and say “We can be happy here.” Or at a pub, without looking at a menu and to general confusion, “We’ll all have the sausages.”
By the summer of that first year matters had progressed enough for me to be invited down for a weekend chez Bingham, at their house in Wales. By this point I knew better than to expect a grand pile, or even a modest one, and I was not disappointed. Located above the little village of Boughrood, Pencommon was a typical Welsh farmer’s cottage, with an outbuilding known as the Beast House where Tom worked. Downstairs there was a kitchen, to which a small sitting room had been added, with three bedrooms on the upper floor. There was no internal plumbing, no heating, no hot or cold water and no sanitation. Instead of a lavatory, both family and guests made do with the El-San, a chemical loo in a stone privy surrounded by lilacs in the back garden, and for any lesser call of nature the ha-ha, which Tom had dug himself many years before. A Council inspection had concluded that the house was in fact unfit for human habitation on every count. It was still so when Tom was made Master of the Rolls in 1992.
The house was simply furnished, and full of books. It had originally had just a single bedroom, but two more had been added and Kate and I were billeted in one of these. Since our room lay on the opposite side to the staircase, with the Binghams’ own bedroom in between, this raised the interesting question of how to deal with the need for a nocturnal Harry Slashers. Getting to the garden seemed to require a Colditz-style escape out of the window, but even this was preferable to the prospect of tip-toeing through the main bedroom and past her sleeping parents. Luckily the solution was to hand: a stout china chamber pot, with a lid.
All meals were eaten in the kitchen or, in any but arctic weather, on the slabs outside. There being no water and so no dishwasher in the house, at the end of the meal the plates were taken outside and washed up in a tin basin with water from the water butt heated on the Aga. This operation was generally led by Tom. “The plates can apricate in the sun,” he would remark on a balmy day, delighting in this rare word, with its air of apricots. More often, however—this being Wales—he would wash up in the freezing cold, dressed in his ancient green army greatcoat.
Mornings were for work. After lunch we would walk, locally in the lanes, on the hills of Brechfa or the Begwyns or, better still, in the Black Mountains and Brecon Beacons. Having scaled Mont Blanc in his youth, Tom was not slow on the hoof. Every ten years he and an old friend would do the “Horizon Walk”, along the length of the Beacons from Modrydd to Hay Bluff, a distance of about 30 miles and many thousand feet of vertical incline. As their children grew older this became a family event, with lunch at a pub in Bwlch (“We’ll all have the sausages”) or at a picnic set up en route by Elizabeth.
Bingham suppers were always great occasions, filled with conversation, humour and—more often than not—singing. Pomposity was deflated and incompetence gently mocked. I will always wonder if it was simply Tom’s courtesy at work when one evening at Pencommon he suddenly invited me to carve the family roast. This was an unboned shoulder of pork: a serious technical challenge at the best of times, as I later learned, and utterly insuperable for the nervous suitor seeking to make a good impression. Ten minutes later I retreated in disarray, Tom took over, and the phrase “immature slashing” received new life within the family lexicon.
Suppers were invariably enhanced by Tom’s free hand with the wine bottle, and at the end of a meal he would sometimes bring out a selection of cherished items from the Scotch Malt Whisky Society. On one occasion an American friend joined us for dinner at Pencommon. Refusing Tom’s advice to add some water to her whisky, she insisted on matching him glass for glass. This was unwise, since even by the formidable standards of the judiciary Tom was regarded as having hollow legs. We duly helped her, with some difficulty, to her room. And out of it the following day for her flight home. She later became a rather senior member of the Obama administration.
At Christmas dinner, the rituals took a different turn. Towards the end of the meal a cry would go up and Tom thereby induced to recite from memory The Ballad of William Bloat, a bloodthirsty doggerel of marital sin and retribution, in the thickest of cod Northern Irish accents, culminating in the immortal lines “Fu thu reeazor bleead wuz Germen meead/bot thu sheeats we’ Bewfast LUNNON”. Coming from a line of Ulstermen, Tom had done his National Service very happily in the Royal Ulster Rifles, and they remained inspiration enough for the accent. After that, the assembled company would sing, sometimes in tune, most of the scores of Guys and Dolls, Kiss Me Kate and Oh! What a Lovely War. Guests who did not know the words found themselves swept up regardless.
Amid the songs, it was easy to forget that one was in the presence of a very great man. Tom never sought to correct this error. He let the conversation flow, rather than attempt to dominate it. Aware of the weight of any judgement, he was scrupulous in forming and stating his own views, or in reserving them where necessary. He was never grandiloquent or long-winded, but possessed of an innate dignity alongside his natural good humour. All were treated with equal courtesy.
Some found this lack of pretension distinctly confusing, especially given Tom’s somewhat austere public persona. In 2003 he was persuaded to stand for election as Chancellor of Oxford University. Since few people knew of him outside the legal world, he readily agreed to a website, www.tombingham.com, setting out his background, supporters and reasons for standing. The use of Tom’s first name seemed obvious at the time, and it seems obvious now. But that plus the unusual combination of senior judge and new technology generated enormous publicity at the time, even moving the legal commentator Marcel Berlins to poetry: 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. I think Tom enjoyed the irony of supposedly pretending to be something he already was.
In reality Tom’s values were those of a committed Protestant, inherited from his parents, both of whom were doctors. He had read the Bible several times, and copies of the King James Version always lay by his and by Elizabeth’s bedsides. Shortly before his death, he was asked to describe his personal ethical code. He replied “I would hope that my own philosophy of life is largely coincident with the New Testament, however imperfectly realised in practice.” So it was.
It was the King James Bible and his great hero Samuel Johnson that fuelled Tom’s love of the English language. He had an Anglo-Saxon preference for the limpid and lapidary over the ornate, and his legal judgements are models of clear and concise argumentation. The same was true of his report into the collapse of the Bank of Credit and Commerce International—remarkably absorbing given the dryness of its subject—and of his recently published essays. Tom was a historian at Oxford, with a special interest in 19th Century America, and had hoped to return to the subject after giving up the bench. His essay on the Alabama claims shows how the modern international rule of law partly rests on the gigantic and entirely voluntary payments made to the US by Britain after it failed to detain confederate warships built in British yards during the American civil war. One cannot read it without regret that Tom was prevented from pursuing his love of history in retirement.
Like that of Dr Johnson, Tom’s wit was ironic, and occasionally mordant. A dubious line of thought might be met with the line “well, it’s not the most overwhelmingly persuasive argument I have ever encountered”. At supper one night after Kate had served up the latest product of her vegetable garden, he put a question to the table: “What is the best implement for Kate’s Spaghetti Tivoli squash?” To which the answer was “A torch, so you can find your way to the compost heap.” Nor was his humour squeamish. Once on being unexpectedly awoken, he directly addressed the offender thus: “Oh sheep, with deep sepulchral cough … FUCK OFF!!”
As I got to know him better, and especially after Kate and I were married in 1992, we spent many hours debating the issues of the day. It was striking that Tom was not afraid to revise his views, often in reaction to Elizabeth’s loving but robust critiques. Having privately expressed some support for an elected House of Lords, he later rejected that option as merely re-creating the defects of the Commons, and embraced the far more radical idea of an appointed but non-legislative Council of the Realm. A late essay on the British constitution showed that he had moved from opposing a codified constitution to guarded interest in the idea of a broadly framed constitutional document, which might in time gain American levels of public understanding and support.
Ten years later, when I was studying and teaching philosophy at University College London, and starting to think seriously about standing for Parliament, I realised how many of my own views had been shaped by discussions with Tom. We often disagreed. But now I see these conversations as a priceless set of tutorials in law, politics and power from a man acclaimed at his death as “the greatest judge of his generation”. I still have no idea how he voted.
Of course there were disappointments. Early on I gave Tom a copy of a book of essays I had edited on the philosopher Michael Oakeshott, who had himself written brilliantly on history and the law. But despite the great overlap of their interests I could never lure Tom into a proper conversation about Oakeshott. Was it Oakeshott’s conservatism that put him off? His exotic private life perhaps, or his taste for German idealism? Probably none of these things, but simply that Tom was not much interested in speculative philosophy, or persuaded of its value. As he once remarked to me, “Consistency can be the enemy of judgement.” Oakeshott would have agreed.
In 1996, the house in Wales was finally and comprehensively renovated. A new sitting room was added with spectacular views of the mountains, as well as several new bedrooms and, at last, various bathrooms and loos. Running water had come to Pencommon.
In the same year Tom was made Lord Chief Justice, the first Master of the Rolls to be given that position for over 350 years. Four years later he repeated the trick, becoming Senior Law Lord in defiance of established precedent. In 2005 he was made a Knight of the Garter, the first serving judge to be so honoured. Tom brought to each successive role an extraordinary capacity for hard work, absolute independence of mind, and a reverence for the law. Elizabeth played a crucial part—intellectual, emotional and practical—behind the scenes.
Harold Wilson once remarked of Tony Benn that he had “immatured with age”. Some suggested the same was true of Lord Bingham. A 2006 headline in the Guardian asked “Is this the most revolutionary man in Britain?”, while Martin Kettle referred to him as “together with David Attenborough, my frontrunner for the title of Greatest Living Englishman.” A previous article in the same newspaper had described him as “the radical who is leading a new English revolution”.
This view multiplied after a speech in 2008, when Tom—now in retirement—unhesitatingly condemned the Iraq invasion as a violation of the rule of law. But as he noted wryly, claims of revolutionary zeal would have surprised his former tutor, the Marxist historian of revolution Christopher Hill. In fact there had been no late rush of blood to the head, or Lord-Denning-like joy in celebrity. Rather, his long tenure at the top of the judiciary allowed him to set out in writing, in speeches and in action the fruits of a lifetime of legal reflection. Once the possibility of having to sit in judgement on cases relating to the war had disappeared, he felt free to discharge his mind on the central public issue of the day.
This process of reflection culminated two years later in a book on no less a topic than the rule of law itself, the first full treatment of it since Dicey’s magisterial study of 1885. Since that time, as Tom pointed out, the rule of law had been invoked, praised, abused, and denounced as meaningless. It had been embedded in international treaties and recently mentioned in a British statute. It was nothing less than “the nearest we are likely to approach to a universal secular religion”. Yet it had never been defined. In retrospect, the gap is yawning. Tom filled it with a book, The Rule of Law, written not for lawyers or specialists but for any reader; a work which somehow contrived to be both original and scholarly and accessible at the same time. The book was swiftly reprinted, and then again. It was no surprise that the book was posthumously awarded the Orwell prize in 2011, the judges describing it as “a book for our times: incisive, wise and clear“.
But as The Rule of Law and its companions The Business of Judging and Lives of the Law make clear, Tom did not see himself as a theoretician. On the contrary, he was imbued in judicial tradecraft. As a result he was deeply aware of the practical exigencies that can threaten justice itself, such as the huge cost and delay of legal proceedings and the impact of excessive and often ill-conceived legislation that made it hard, and sometimes impossible, for anyone to say what the law was. He also rejected the widely held view that judges were ancient fuddy-duddies out of touch with the real world, pointing out that they had to deal with the real world every day in court. This position became less sustainable, however, after the occasion when Kate and I introduced him to sushi for the first time, and he carefully took out his chopsticks and very courteously gave one to each of us.
It may strike some as odd that a man so wedded to precedent and the common law should prove a consistent and imaginative reformer as a judge. Tom was the first senior judge to support the abolition of the Bar’s monopoly of representation in the High Court. He was the first to support the incorporation into English law of the European Convention on Human Rights, in what became the Human Rights Act. He led the way in advocating the removal of the Law Lords from Parliament and into a separate Supreme Court, and he unceasingly promoted an active and independent-minded judiciary.
But it is for his legal judgements that Tom will longest be remembered, and in particular for two celebrated decisions: the Belmarsh judgement of 2004, in which the Law Lords held that indefinite detention without charge contravened the European Convention on Human Rights; and torture judgement of the following year, in which they ruled that evidence obtained by torture was not admissible in any British court. The effect of these was to check the increasing authoritarianism of the Blair government in the so-called War on Terror. The government reacted predictably enough, by denouncing the judges. But there was also a more subtle attempt by the then Home Secretary, Charles Clarke, to meet the judges informally and see if something could not be worked out. This offer was pointedly refused by Tom.
An emphasis on individual rights has sometimes been taken by politicians as indicating a disrespect for Parliament, a radical human rights agenda, or a desire for drastic reform of our constitutional settlement. In Tom’s case none of these things was true. He daringly placed basic human rights within the very definition of the rule of law. But he emphatically affirmed the sovereignty of Parliament, and expressed his scepticism about proposals to entrench the Supreme Court, as in the US, or to privilege judicial decisions over Parliament itself, both measures which would fundamentally alter the balance of the constitution, and politicise the judges. He recognised that judges inevitably sometimes “make law” through their decisions. But he stressed that this hardly amounted to any genuinely legislative function.
He supported the Human Rights Act because its provisions, with one exception, all derive from the English common law—the exception being Article 8, the right to privacy, which has been the source of recent debate over superinjunctions. The Act might be imperfect, and imperfectly interpreted. But of those who wished to prune it back, he would simply ask which rights they proposed to remove: the right to life, perhaps, or the prohibition on torture, or the freedoms of speech or association? The Act was the creation of Parliament, and it was always open to Parliament to amend or repeal it, with all the consequences that would entail. But while the Act remained in force it was the judges’ job, indeed their legal obligation to Parliament, to apply the law as they understood it. Judicial decisions were, thus, not anti-democratic, but an expression of democracy in action.
Tom’s retirement in 2008 was celebrated by a grand dinner hosted by the Justice Secretary, Jack Straw, at Lancaster House. Present were the Law Lords, the heads of the various divisions of the judiciary, present and retired Lord Chancellors and other senior legal figures. There were no speeches, but Elizabeth and the family had quietly arranged alternative entertainment. Towards the end of the evening the doors were suddenly flung open and the sound of trumpets filled the room, as the family’s favourite Adamant New Orleans Marching Band struck up the Battle Hymn of the Republic. Tom’s face turned from horror to delight as the entire assemblage of lawyers sang words inspired by Cherie Blair’s recently published autobiography: He was fearless as an advocate in every case he’d take/He wouldn’t flinch when lofty legal questions were at stake/And in the words of Cherie Blair, he’s charming like a snake/Yes, he’s charming like a snake/Glory, Glory, legal cobra/Glory, Glory, legal cobra/He’s charming like a snake. It was another Bingham supper, full of laughter and singing.
Tom died on September 11, 2010. His memorial service in Westminster Abbey was a splendid and deeply moving occasion. But I think he would personally have preferred his funeral, on a bright but blustery Welsh day at St Cynog’s in Boughrood, with a violin solo by his granddaughter.
[A version of this piece first appeared in the March/April issue of Intelligent Life magazine]