Back in 1990 Sir Thomas Bingham had barely started to accumulate his dazzling array of gongs and titles, which would one day include 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.
Matters were not helped by friends who gleefully pointed out that Sir Thomas was known to have “an alpha-plus mind”. Supposedly the cleverest boy in a hundred years at Sedbergh School in Cumbria, a scholar at Balliol, Oxford, a first in history, top in finals at the Bar, a QC at the appallingly young age of 38: it was all rather unnerving. I had visions of his great brain throbbing away while he rangily cross-examined his daughter Kate’s latest unworthy suitor. That would be me.
These fears were soon proved quite wrong. Tom was never anything but Tom, and 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, I realised that this combination of brains, charm and straightforwardness ran through the entire family. I had dimly expected the usual careful negotiations and 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. From the outset Tom showed an encyclopaedic knowledge of my family and its history, including some of its more outré members. I doubted they would enhance his confidence in me. And then there was the matter of language. The Binghams talked to each other in a barely intelligible linguistic home brew featuring The Hun (Attila, aka the garden rotavator), Tippecanoe and Tyler Too (kayaks, cf. the 1840 American presidential election), and Hokkaido (the strimmer). The suffixes “-ulator” and “-yman” (pl. “-ymen”) were applied wherever possible, so that at Christmas you might be asked to put the chestymen in the stuffing for the turkulator. Names were shortened to Perky Perkins, 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 at the Binghams’ house in Wales. I already 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. The cottage had three bedrooms, a kitchen and a small sitting room. 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 Elsan, 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 unfit for human habitation. It was still so when Tom was made Master of the Rolls in 1992.
The house was simply furnished, but full of books. It had originally had a single bedroom, but two more had been added and Kate and I were billeted in one of these. The Binghams’ own bedroom lay between ours and the stairs, raising the question of how to deal with the need for a nocturnal Harry Slashers. Tip-toeing through the main bedroom and past Kate’s sleeping parents seemed unthinkable. I steeled myself for a Colditz-style escape out of the window. Luckily a more old-fashioned solution was to hand: a stout china chamber pot.
All meals were eaten in the kitchen or, in any but arctic weather, on the slabs outside. At the end of the meal the plates were taken outside and washed up in a tin basin with water from the outside tap heated on the Aga. This operation was usually 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, this being Wales, he would wash up in the freezing cold, dressed in his ancient green army greatcoat.
In the mornings Tom would work, writing his legal judgments or speeches, by hand, at a huge table in the Beast House. 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 a picnic set up en route by Elizabeth or lunch at a pub in Bwlch (“We’ll all have the sausages”).
Bingham suppers were great occasions, filled with conversation, humour and singing. Pomposity was deflated and incompetence gently mocked. I will always wonder if it was simply courtesy at work when Tom 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.
Supper was enhanced by Tom’s free hand with the wine bottle, and sometimes rounded off with 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 to her room, with some difficulty. And out of it the following day so she could fly 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 to persuade Tom to recite “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 you were in the presence of a 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 judgment, he was scrupulous in forming and stating his own views, or in reserving them where necessary. He was never grandiloquent or long-winded, but had an innate dignity to go with his natural good humour. All were treated with equal courtesy.
Some found this lack of pretension 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 agreed to a website, tombingham.com, setting out his background, supporters and reasons for standing. The use of Tom’s first name seemed obvious then, and it seems obvious now. But that plus the combination of senior judge and new technology generated enormous publicity, even moving the legal writer 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, his values were those of a committed Protestant, inherited from his parents, who were both doctors. He had read the Bible several times, and copies of the King James Version always lay by his and 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 hero Samuel Johnson that fuelled Tom’s love of English. He had an Anglo-Saxon preference for the limpid and lapidary over the ornate, and his legal judgments are models of clear and concise argument. 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 essays, a second volume of which appeared in 2011. As a historian at Oxford, he had a special interest in 19th-century America, and he 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 United States by Britain after it failed to detain confederate warships built in British yards during the American civil war. I cannot read it without regret that Tom was prevented from pursuing his love of history in retirement.
Tom’s wit, like Dr Johnson’s, was ironic, 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!”
After Kate and I were married in 1992, I spent hours discussing the issues of the day with Tom. He was not afraid to revise his views, often in reaction to a loving but robust critique from Elizabeth. 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 showed that he had moved from opposing a codified British constitution to a 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 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 these conversations were a priceless set of tutorials in law, politics and power from a man acclaimed at his death as the greatest judge of his generation. And I still have no idea how he voted.
Of course there were disappointments. Early on I gave Tom a book of essays I had edited on the philosopher Michael Oakeshott, who had 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 him. Was it Oakeshott’s conservatism that put him off? His exotic private life perhaps, or his taste for German idealism? Perhaps it was just that Tom was not much interested in speculative philosophy, or persuaded of its value. As he once told me, “Consistency can be the enemy of judgment.” Oakeshott would have agreed.
In 1996, the house in Wales was finally renovated. A new sitting room was added with spectacular views of the mountains, as well as several bedrooms and, at last, bathrooms. Running water had come to Pencommon. In the same year Tom was made Lord Chief Justice, the first professional judge to move from Master of the Rolls to 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 role a 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, a minister in his Cabinet, 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 the commentator Martin Kettle referred to him as “along with David Attenborough, my front-runner for the title of Greatest Living Englishman”, and “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 invasion of Iraq by America and Britain 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, nor any Lord Denning-like taste for celebrity. Tom’s long tenure at the top of the judiciary allowed him to set out the fruits of a lifetime of legal reflection. Once the possibility of having to sit in judgment on cases relating to the war had disappeared, he felt free to speak on the central 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 A.V. Dicey’s magisterial study of 1885. Since that time, 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 “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 was original, scholarly and accessible. It was reprinted seven times in hardback, and won the Orwell prize in 2011, with the judges calling it “a book for our times: incisive, wise and clear”.
But as “The Rule of Law” and the companion volumes of essays show, Tom did not see himself as a theoretician. On the contrary, he was imbued with judicial tradecraft. He was particularly 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, 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 a little less tenable after 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.
For a man wedded to precedent and the common law, Tom was a consistent and imaginative reformer. He 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 of 1998. He led the way in advocating the removal of the Law Lords from Parliament into a separate Supreme Court, and he unceasingly promoted an active and independent-minded judiciary.
But it is for his legal judgments that Tom will longest be remembered, and in particular for two celebrated decisions: the Belmarsh judgment of 2004, in which the Law Lords held that indefinite detention without charge contravened the European Convention on Human Rights; and the ruling of 2005 that evidence obtained by torture was not admissible in any British court. The effect was to check the increasing authoritarianism of the Blair government in the so-called “war on terror”. The government reacted, predictably, 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. Tom pointedly refused; I vividly recall his anger.
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 it was none of these. 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 America, 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 a genuinely legislative function.
He supported the Human Rights Act because its provisions all derive from the English common law — with the exception of Article 8, the right to privacy, which has been the source of recent debate over super-injunctions. 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 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 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 of cancer in September 2010. His memorial service in Westminster Abbey was a splendid and deeply moving occasion. But I suspect he would have preferred his funeral, held on a bright but blustery Welsh day at St Cynog’s in Boughrood, with a violin solo by his granddaughter.