32 Judicial Heroes
VENERATION OF A member of the judiciary is intrinsically an attribute of the practising lawyer. And in these memoirs I am no exception to identifying my judicial hero, save that my selection is as much about the mark of heroism being made more complete by other virtues beyond juristic measureship or heroic decision.
On account of being blessed with several other qualities, together with a first-class mind, humility in the art of decision-making, common sense about affairs generally, a flair for fairness, a consideration for fellow human beings and a sparkling wit, Lord Bingham of Cornhill (he insisted on being addressed as Tom Bingham) is my choice. Above all human values, he was quite outstandingly the best appellate judge of his generation. His equal is Lord Scott Reid, who, in an earlier age, would be Tom Bingham’s fellow opening batsman in my first XI.His extrajudicial qualities were manifest. Apart from scholarly works, such as his remarkable book The Business of Judging[278] (being a selection of essays and speeches), exhibiting an extensive intellectual range from professional journals addressed to law-makers and other opinion-formers, he was an admirer of Dr Johnson, himself an aspiring lawyer. Tom adopted Dr Johnson’s apt quote, ‘clear your mind of cant [prejudice, to be more precise]’. Tom Bingham’s essay adopts likewise the claim in The Campaign (1794), by the literary figure and friend of Dr Johnson, James Boswell, to that complete heroism which was the reflection of the great tempest of 1703. Two impacts of that event were aspects of Tom Bingham’s career. First, the cathartic politics of the ensuing years, and secondly, its historic meaning of democratic government that avoided anarchy, were both hallmarks of Tom Bingham. Nearly all his judicial pronouncements were fine-tuned and often embellished by historical allusions and development.
No other judge had demonstrated the essence of the life of the law, both historically and logically. But it did not stop there. When he became, in 2000, president of the judicial House of Lords, he rescued the world-wide reputation of that institution after the maladministration caused by the initial nondisclosure about the composition of the Court in 1999 to hear the appeal of General Pinochet. It is no exaggeration that Tom Bingham’s handling of the judicial House of Lords led to its successor, the UK Supreme Court, preserving intact the unwritten constitution. His manner, both in and out of court, was universally applauded. By his demeanour, the final court of appeal demonstrated Tom Bingham’s claim for collegiality and an outstanding jurisprudence, no doubt influenced by his graduation at Oxford in English history. If Tom Bingham was impressed, if not persuaded, by the political argument for a written constitution (enforced by a Supreme Court), he expressed an alternative form to replace the parliamentary House of Lords (hopelessly negatived in 2013). His proposal was some institution along the lines of the Conseil d’Etat in France. This latter reference supplemented his vision of a ‘new dawn of internationalism’, replacing the traditional approach of the English judiciary which exhibited an excessiveness of detachment from the civilian system.In September 2010 Tom Bingham died far too early, at the age of 76. But the memory of him as a judicial colossus, presiding over outstanding cases in the common law and the evolving declarations of civil liberties, is enshrined both in the law and by the country. In 2005 he was appointed a Knight of the Garter, a personal gift of the Queen, the first professional judge to be so appointed.
Lord Reid was a direct appointment to the House of Lords in 1948; he retired in 1975 having become Senior Law Lord in 1962. The retiring age was then 75, so that he spent 26 years as an appellate judge. He too was an historian, although he qualified academically in mathematics.
His knowledge was brilliantly exemplified in the constitutional illegality of the unilateral declaration by Ian Smith in 1965. The main case touching on the right of a federal country to secede from the federation was an American Civil War decision of the US Supreme Court. There were in the course of counsel’s submissions frequent allusions to the state of West Virginia, at the mention of which Lord Reid intervened with a neat explanation of the military and constitutional position of the seceding state of the Confederacy - much to the amazement of the historians!Lord Reid did not expatiate a great deal on his judicial work, save for his memorable speech at an SPTL conference in Edinburgh, when he observed that nobody believes in fairy tales any more; amusingly he alluded to the classic words of Alice in Wonderland. More significantly, he adhered to reticence in public speaking, since he came to judgeship via a parliamentary and ministerial background (he had been Scotland’s Lord Advocate). His judicial pronouncements were more than just workmanlike, if not intuitively juristic, although he was the prime mover of the Practice Statement of July 1966 removing the straitjacket of binding previous judgments. But, emphatically, he was an activist and also had a creative role in establishing a civilised system of public law.
Five cases in the 1960s under Lord Reid’s impetus and classical judgments formed the essential foundation of the law of judicial review of ministerial decisions, and the creativeness of English public law, now embedded in a modern administrative law.[279] That alone qualifies Lord Reid as the other outstanding appellate judge of his generation and example to the judiciary 40 years hence. The judgments were scholarly: not landmarks of legal literature, but a wealth of logically immaculate statements of law that jurispruden- tially found, and still find, acceptance by practising lawyers.
But the manner of his judgeship did nothing to detract from his judicial decision-making, even if the written product is less than pithily quotable.
He told me once that the duty of a judge in writing conclusions was to be concise and clear. The result of a case should emerge during a probing interrogation of the rival parties, and only after the last word was spoken. Listening to argument was a vital pre-condition to rational judgment.My appreciation is largely retrospective (although I did appear on a few occasions in the last days of Lord Reid’s astonishing output - he delivered over 400 appeals with a high proportion of full judgments). His writings were always clear and concise, the latter a judicial model that nowadays is in short supply among the higher judiciary. Fact-finding is inevitably length-determined. Appellate judging should always avoid prolixity. My concentration in this appreciation is upon what judges do rather than engaging at length in the vitally interesting, if less stimulating question as to why and how they do it. In his oral history, Final Judgment,[280] Professor Paterson more than makes up for the deficiency in my own terms of reference. Yet Lord Reid tops my list of judicial heroes, as proximae accessit.
Inevitably one’s heroes are former appellate judges, probably at the second tier of the judicial hierarchy, but they will normally have been High Court judges sitting at the first instance of the legal system. Many of their qualities of heroism will have been sufficiently evidenced as puisne judges. The High Court judiciary’s primary function as fact-finders and declarers of law (they are bound by precedent and therefore rarely, if ever, law-makers) means that the qualities called for (where they sit, in civil cases, without a jury) are the capacity and facility to hear witnesses, to pass judgment on their cross-examination, and to give judgment (if necessary, reserved). I have great admiration for the general expertise of these judges, less than a hundred in number, working to a high, sometimes exemplary, standard. But, for me, the unsolicited guide to promotion to the Bench in my time came from Derek Hodgson, a Northern Circuiter of distinction, a prominent Law Commissioner in the late 1970s and a High Court judge in 1980. He told me that on his appointment, he placed, metaphorically, on the Bench in front of himself the following directive: ‘Remember that the function you will be required to perform is of eminence to the parties in litigation in front of you, but that you personally are of no importance.’ That is the clear implication of the judicial oath of office.