The legal world recently lost one of its greatest minds: on 11 September 2010 Baron Bingham of Cornhill, Lord Bingham, died of cancer.
A High Court judge, Master of the Rolls, Lord Chief Justice and then Senior Law Lord, before retiring in 2008, Lord Bingham was best known as a staunch defender of civil liberties, and in particular for upholding civil rights in the face of anti-terror legislation.
Revered by law students, barristers, solicitors and human rights campaigners, he was a vocal critic of the Iraq War as well as a staunch defender of the 1998 Human Rights Act (HRA) and British libertarian traditions, which he saw as dating back to the Magna Carta. One of our lawyer-colleagues here at Chambers and Partners described Bingham as “one of the great civil rights campaigners,” before adding: “I just loved reading his judgments!” You’ve probably already read about the man’s life and achievements in the legal or national press, so we thought we’d give you a more in-depth insight into some of his most famous House of Lords judgements and the impact they had.
Perhaps Lord Bingham’s most noted judgment was on detention without trial in A and others v Secretary of State for the Home Department . At the time, a number of foreign nationals accused of terrorism-related offences were being held in Belmarsh prison awaiting deportation. Bingham ruled that this was incompatible with article 5(1) of the European Convention on Human Rights (ECHR). The ECHR allows exceptions to article 5(1) only if the exceptional action is proportionate and there is a ‘public emergency threatening the life of the nation’. Bingham judged neither to be the case. His opinion goes on to take issue with the matter on more political grounds, criticising ‘the choice of an immigration measure to address a security problem’ and challenging the government to show ‘why a terrorist, if a serious threat to the UK, ceases to be so on the French side of the English Channel or elsewhere’.
Bingham set out a similarly precise and political argument is his opinion in A v Secretary of State for the Home Department (No 2) . The government of the day had considered it a matter of policy not to accept evidence gained through torture; Bingham’s opinion was that the courts are under a legal obligation not to admit such evidence. Bingham cited over 500 years’ worth of jurisprudence to indicate that it has been established that evidence obtained involuntarily is unreliable and therefore cannot be admitted.
The judgment R (Begum) v Governors of Denbigh High School  included a notable opinion by Bingham on the wearing of religious dress in secondary schools. Put bluntly, the House of Lords ruled that school uniforms trump religious dress in this case. The wearing of a school uniform did not interfere with the religious ‘practice or observance’ of the plaintiff - it was a legitimate and proportionate restriction of the manifestation of religious belief.
Bingham’s other judgments include establishing that parent companies owe a duty of care to employees of subsidiary companies (Lubbe v Cape Plc ); that ‘materially increasing the risk’ of harm is enough to constitute employers’ liability in asbestos-disease cases (Fairchild v Glenhaven Funeral Services Ltd ); that it was legitimate for the government to use the Parliament Act 1949 to push through the 2004 hunting ban (Jackson v Attorney General ); that the government is permitted to deport asylum seekers to countries which violate Article 9 of the ECHR (the right to freedom, thought and conscience) provided that violation is not ‘flagrant’(Doe v. Secretary of State for the Home Department ); and that anonymous evidence had been used in contexts beyond what was intended under then-current legislation (R v Davis ). This last judgment led to the introduction of new legislation expanding the permitted use of anonymous evidence.
If you haven’t come across them already, Bingham’s judgements are well worth reading. They and other House of Lords judgements can be found online.
The wider impact of these House of Lords rulings should not be underestimated, or misjudged. In the case of Begum, Bingham stresses that this was ‘a particular pupil and a particular school in a particular place at a particular time’: he states that it is not for Britain’s courts to determine general rules related to religious observance. In contrast, rulings such as Jackson establish important principles about the sovereignty of Parliament, while others, like Fairchild, have given rise to a glut of new cases.
You will know that the British legal system is heavily reliant on jurisprudence and is based on a unique uncodified constitution. What Lord Bingham’s legacy makes clear is that this means that House of Lords/Supreme Court rulings have a major impact on litigation brought before English courts, the make-up of the constitution itself and public policy decisions.