Address given at the Thanksgiving Service for The Right Honourable Lord Bingham of Cornhill KG

25 May 2011 at 18:00 pm

The Right Honourable The Lord Mackay of Clashfern KT, Lord Chancellor 1987–97

Lecturing in Oxford Lord Bingham referred to Lord Goff of Chievely as the senior law lord but, even more grandly High Steward of this University. It was therefore singularly appropriate that the address at this service should be given by Lord Bingham’s distinguished successor in that office, Lord Rodger of Earlsferry who was also his successor as Visitor of his beloved Balliol College. To my immense sadness and I am sure this is shared by all of us, illness has prevented him from discharging this duty.

In 2005 Lord Bingham was honoured nationally when he was appointed a Knight of the Garter as the first serving judge to receive that honourand in 2008 internationally when he received the first Onassis Prize. It is entirely fitting that we should be gathered to give thanks for his life in this ancient House of God that has occupied such a central role in our nation’s history over many centuries up to the present time, a history of which he was a devoted student.

I first met Tom in 1972 when we were instructed together in an appeal to the House of Lords. I opened for the appellant and was subjected to heavy challenge all morning by Lord Reid. As we walked to lunch Tom paused deliberately and said to me “We are going to win”. We did. The hearing had still a full day to go.

Soon after he became a successful Queen’s Counsel. “The effective advocate is not usually he or she who stigmatizes conduct as disgraceful, outrageous, or monstrous but the advocate who describes it as surprising, regrettable, or disappointing.” This remark of his characterised his advocacy.

In 1980 Tom was appointed a High Court Judge. He represented the United Kingdom in the European Court of Justice in a number of cases in which the Commission considered that the Government had taken a high handed approach to the Common Fisheries Policy. He had advised the incoming Government that there was no defence. On his appointment. I took his place. In his letter acknowledging my congratulations on his appointment he expressed the fear that I might think up some defence. His fear was groundless.

In 1987 when I became Lord Chancellor Tom was in the Court of Appeal but my contact with the judiciary was with the Heads of Division. On the retirement of Lord Donaldson of Lymington he was the obvious candidate to succeed. Thereafter I saw him regularly and had the immense benefit of his advice on many topics.

Then suddenly in 1996 Lord Taylor of Gosforth the Lord Chief Justice became seriously ill and retired.  Who should take his place? I felt that while in the recent past the holders of that office were particularly experienced criminal lawyers the Lord Chief Justice  sat in important  civil cases and that it was right to recommend the preeminent judge available from a strong field. I consulted senior judicial colleagues and in view of the proximity of the General Election Mr Blair as Leader of the Opposition and my shadow Lord Irvine of Lairg. I asked Tom if he would be willing that I should recommend him. I said he need not do it for more than a few years since I appreciated that it was a heavy burden. He asked to consider it and the rest is history.

In due course to my delight he was nominated by Lord Irvine of Lairg as Senior Lord of Appeal in Ordinary, the first to be so appointed who was not a serving Lord of Appeal in Ordinary. As a presiding judge he was a model, pushing the argument on with a judiciously timed “Yes”, intimating an adjournment with,” We much look forward to hearing you continue your submissions at two o’clock” or whatever the appropriate time, and concluding the hearing by thanking all who had taken part for their contributions. He was a superb court administrator.<> In my view Tom was an outstanding success in all his judicial responsibilities. Judgments of his are repeatedly cited as authoritative in a wide variety of fields of law including the criminal law.

In the Times on 22 September 2010 Sir Christopher Rose, himself an outstanding judge, wrote “Your obituary rightly emphasised his outstanding intellect. He was blessed with several other qualities not always conjoined with a first-class mind: humility, common sense, an instinct for fairness, consideration for others and sparkling wit. For 15 years I had the good fortune to see all these qualities at close quarters, sitting with him when he was Master of the Rolls, Lord Chief Justice and Senior Law Lord and working closely with him particularly in relation to criminal justice. He was quite simply the best appellate judge of his generation and an admirable human being.

He supported separating the judicial from the legislative House of Lords and the incorporation of the European Convention on Human Rights into our domestic law, appreciating fully that the decisions were for the legislature of  which  as a judge he did not wish to be part. Of the latter he said to me that he hoped that the decisions of our courts on the convention might help to mould the Strasbourg jurisprudence.

I mentioned two legal forecasts by Tom that turned out to be right. I never discussed party politics with Tom and I did not know his views on these matters. Shortly before the last General Election as a member of a dining club he dined at with a number of others. There was much discussion of the possible outcomes. I t was agreed to hold a sweepstake. Each wrote his forecast. After the election one slip said “A Conservative–Liberal Democrat Coalition”. It was Tom’s. His forecast was right in another field.

In addition to his judicial responsibilities Tom held a great number of other offices ranging from the national archives, historical manuscripts and those connected with justice to the Hay Literary Festival. Once when were discussing his work in the archives he said “James, I really am an historian manqué” He was as effective in the chair of other bodies such as the Balliol Society as he was presiding in court.

He was called upon to speak at many social occasions, formal and informal and he always did so with a speech carefully crafted for the occasion and wittily based on a detailed knowledge of the person or other subject matter of the gathering.

It was at Sedbergh he learned something of the rigour of life, acquired a love of learning and hard work as well as an abiding attraction for beautiful landscape. There he penned these lines:

Thou canst not see her valleys green,

The star-aspiring hills between,

Thou canst not with these wonders seen

Declare there is no God.

His early experiences at Sedbergh, at Balliol and in the army shaped his life and contributed to his success but I am convinced that a fundamental contribution was also made by his Biblical faith and his family life to which Kit has paid his moving tribute. Those who were privileged to attend the reception and dinner that Jack Straw gave as Lord Chancellor to mark his retirement were given an insight to that life by the entertainment provided by the family which included an adaptation of a well known spiritual to the words

“Gonna lay down my Law Reports

Down by the River Wye

Ain’t gonna study law no more”

all with the Adamant Marching Band.

He loved his home in Wales where he spent as much time as he could and where many of his judgments were written in a clear longhand which did not require correction.

On behalf of all the rest of us here today I wish to express to Elizabeth and all the family our deep sympathy in their sad loss and may the future hold for each of them all that Tom would have wished for them.

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