24 April 2000
This is positively the last time I shall make any jokes about the Lord Chancellor promoting any Tom Dick or Harry to the higher judiciary. But the appointments of Lord Bingham as the senior Law Lord, Sir Richard Scott as the junior Law Lord and Lord Woolf as Lord Chief Justice of England and Wales, were not made lightly. It was in my first column for The Lawyer (13 September 1999) that I alluded to the ill-health suffered by Lord Browne-Wilkinson, currently senior Law Lord, following Lord Hoffmann's decision not to resign over the Pinochet debacle. I suggested that the Lord Chancellor would look outside the ranks of the serving Law Lords for his successor (although I backed Lord Woolf).
Now Lord Browne-Wilkinson is retiring a little earlier than he might have liked, to make way for a man only a year or so younger. Lord Slynn, next in-line, has had the post snatched away from him. Others, who might in due course have taken the senior post, such as Lord Nicholls and Lord Steyn, now have their chances of promotion blocked. The senior Law Lord used to be the one who'd been in the post the longest. Now Lord Irvine has turned it into a judicial appointment like any other.
Lord Bingham has never sat as a Law Lord. Why has he leapfrogged the others? He is no enemy of the present government, supporting Jack Straw's plans to remove the right of defendants charged with either-way offences to choose trial by jury. He is also on record as predicting that the impact of the Human Rights Act will not be as great as some commentators have thought. It looks as if the Lord Chancellor wants a safe pair of hands heading the highest court of appeal when the act comes into force - someone who will resist the more extreme attempts to create unexpected rights for the citizen and unwanted obligations for the Government. Of course, Lord Bingham will have to carry at least two other Law Lords with him. But one of his jobs as senior Law Lord will be to decide who should sit on each case. Lord Bingham was supported by two judges when he decided, in October 1998, that General Pinochet was entitled to immunity from extradition. By my calculations, he was overruled on this point by seven of the Law Lords he'll now be sitting with.
How far will Lord Bingham go? The Law Lords have already broken with tradition by advertising for legal assistants, lawyers appointed for a year at a time to conduct research, summarise petitions for appeal, and assist with written material (though not, we are assured, to write judgments for the law lords). Will Lord Bingham support long-overdue moves to take the law lords out of parliament altogether?
The happiest result from this game of musical benches is that Lord Woolf becomes Lord Chief Justice. Harry Woolf was passed over for appointment as Master of the Rolls in 1992 when the job went to Tom Bingham. He seemed set for a quiet life in the House of Lords until Lord Bingham was unexpectedly made Lord Chief Justice in 1996, when Lord Taylor of Gosforth retired through ill-health. Lord Woolf stepped into Lord Bingham's robes as Master of the Rolls, reorganising the entire civil justice system in his spare time. Implementing Lord Justice Auld's forthcoming reforms to the criminal courts will be the next challenge for this much-admired reforming judge.