Lord Bingham of Cornhill KG

"Where law ends, tyranny begins" - John Locke 1690.

I would not presume to even attempt to write an obituary of Lord Bingham who died on 11th September.  In any event, to my mind, many distinguished writers have already done that with eloquence and they have amply expressed their admiration for a man who stood up for the rule of law and for what that means for everyone.  see, for example, The Guardian .   Apart from his judgments in court, Lord Bingham gave many excellent speeches.

In 2006, he spoke of The Rule of Law at Cambridge University and set out his views of what the rule of law entailed - see here.  The Rule of Law depended on "an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of freedom and power which they would otherwise enjoy".  Bingham analysed this into 8 sub-rules:

• The law has to be accessible - intelligible, clear and predictable
• Legal rights and liabilities should ordinarily be resolved by law and not discretion
• The law should apply equally to all except to the extent that objective differences justify otherwise
• The law must afford adequate protection of fundamental human rights
• There must be means to resolve, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties are unable to resolve
• Ministers and public officers at all levels must exercise their powers reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
• Adjudicative procedures should be fair
• The state must comply with its obligations under international law.

Of course, it is debatable whether English law meets all of those criteria.  Nevertheless, Bingham's development of those sub-rules was a tour de force to which he returned, after his retirement as a judge, in his book "The Rule of Law" which should be required reading for all.

In 2008, he delivered the Grotius Lecture to the British Institute of International and Comparative Law and devoted much of it to a devastating analysis of the legal basis used by the British government to justify the Iraq War - see Telegraph.  Perhaps unsurprisingly, Jack Straw and Lord Goldsmith expressed their disagreement.

In March 2009, Lord Bingham addressed the Convention on Liberty - here.   He spoke of liberty and addressed threats to it arising from advances in technology and the serious concerns about security in the modern world.

In 2008, Bingham gave a judgment in R (Bancoult) v Foreign Secretary [2008] UKHL 61.  The case concerned the Chagos Islanders and their treatment at the hands of Britain.  His judgment is a model of clarity.  Article 9 of the British Indian Ocean Territory (Constitution) Order 2004 denied anyone a right of abode in the islands,  Bingham, dissenting, held this to be unlawful.  First, there was no prerogative power to make an Order in Council containing article 9.  However, if that was wrong, the article was (a) irrational (made for no good reason) and (b) was made in clear breach of a clear representation by the Secretary of State.

Perhaps Bingham's grand theme was that of rights and liberty.  " .... we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame  which animates and enlightens the society in which we live ...."

The UK Supreme Court blog has an eloquent tribute to Lord Bingham - here and see here what is said on behalf of the Justices of the Supreme Court.