Editors’ note: Part One of this tribute to AW Bradley is available here.
IV
Shortly after Tony died, I wondered what would a constitution in Tony’s image look like. I asked a few people who knew him well about his intellectual influences. But we found it hard at this stage to pinpoint any particular source or sources, and in that sense Tony remains an enigma. From a non conformist background and with an independence of mind, in general terms he was sensitive to the dangers of power and mindful of the responsibilities of those who exercised it. Tony was above all a liberal in politics and a liberal in his scholarship: a social liberal who recognised the importance of the State; but a social liberal who worked to ensure that State power was matched by effective methods of accountability and redress. In terms more specifically of how this might inform his views about the constitution, he did nevertheless leave a few clues both in his scholarship and in his frequent appearances before select committees. These are good places to find out what people really think. At the risk of over-interpretation, I focus here on two general themes.
A ‘qualified belief in parliamentary sovereignty’
The starting point is that Tony’s constitution is unlikely to have been codified. As he explained to the Joint Committee on Conventions in 2006:
So I think that codification, writing down some of the main understandings is perfectly possible, but I think it will be unlikely to afford the result of providing a simple solution in matters where there is going to be political disagreement, and legitimate political disagreement.
(Joint Committee on Conventions, Minutes of Evidence, 18 July 2006, Q 133)
Tony was speaking there specifically in the context of the conventions between the two Houses of Parliament, and expressed opposition to any suggestion that the Lords should have a fixed number of days to consider Commons Bills: he greatly valued the constitutional role of the House of Lords (which is not to say that he was complacent about its current method of composition). The hesitancy about codification would be consistent with his view that the constitution is a work in progress, which ‘in its essential elements has [not] come to the end of the road; it is still developing and evolving’ (European Scrutiny Committee, Minutes of Evidence, 25 November 2010, Q 50).
We find a similarly pragmatic approach to the role of Parliament, about which Tony had written in an important essay in Jowell and Oliver’s The Changing Constitution. Here we find a repudiation of the view that the 19th or mid 20th relationship between Parliament and the courts ‘was pre-ordained by a beneficent power and was unalterable’, and a doubt whether ‘any political system works today in such a perfect way as to justify the removal of all restraints upon the making of laws by a popular assembly’. In evidence to the European Scrutiny Committee, however, Tony expressed a ‘qualified belief in parliamentary sovereignty’, while adding that ‘parliamentary sovereignty goes further than we need in a democracy’, and doubting whether ‘our democratic system is working so beautifully that it can be trusted on its own to avoid sometimes committing abuses of a sovereign power’ (European Scrutiny Committee, ibid, Q 49).
The same session of the European Scrutiny Committee was notable for an exchange with the then Tory backbencher Jacob Rees-Mogg, in which Tony explained that parliamentary sovereignty ‘is quite a complex concept’, incapable of being boiled down ‘to a single rule that one could put into a statute’: it was not ‘for Parliament to create the doctrine of parliamentary sovereignty and it is not simply for the courts alone to do so’. But although ‘the ultimate source of parliamentary sovereignty’ was in his view ‘a very interesting theoretical speculation’, it was ‘not a very important one’ (ibid, Q 50). The latter is an observation which I would dispute, though it is one that facilitated a flexible approach to parliamentary sovereignty, enabling Tony to disagree with Sir John Laws that ‘Being sovereign, [Parliament] cannot abandon its sovereignty’, on the ground that such ideas were ‘overstated’:
If there is a vote in Northern Ireland in favour of unification with the Republic, the British Parliament will abandon sovereignty over Northern Ireland. It has, I think, abandoned sovereignty over many Commonwealth countries, and it is pointless to ask whether one could repeal the independence legislation.
On the other hand, it was easy to agree with Sir John that ‘there should be a category of constitutional statutes of a status such that the courts should be slow to find that they have been repealed inadvertently’. This seemed to Tony to be an important step forward, which he welcomed and expressed surprise that some commentators were critical (ibid, Q 45). What intrigued me most, however, was the question from Bill Cash in the European Scrutiny Committee asking how a court might interpret a clause in a statute expressly derogating from EU law ‘by using a notwithstanding section’. I had expressed the somewhat unfashionable view at the time that in such circumstances the courts would be required to apply the statute with the notwithstanding clause on the ground that Parliament would have repudiated the voluntary limitation of its sovereignty in the European Communities Act 1972. However, I was never sure whether Tony shared this view. But in his response to Cash he makes it clear that
I didn’t comment earlier on the notwithstanding point. It is not an easy one, but my view at the moment is that if the intention is made very clear in the new United Kingdom statute that this is to operate, notwithstanding the particular rule of European Union law, that is what the courts would apply. They would enforce that.
So although Tony was sceptical of the unalterable view of parliamentary sovereignty, the margin of qualification was very limited. If Parliament made its intention clear, a court’s duty was clear. He was much concerned about Parliament and the courts respecting each other’s role, and was not impressed by the suggestion in Jackson that there was some inherent power of the courts to refuse to apply legislation on rule of law grounds. Expressing some fairly forthright views of the well known observations of Baroness Hale, Lord Hope and Lord Steyn in Jackson, Tony said that:
I felt in regard to the speech of Lord Steyn, for example, that I admired some of the ideas he was expressing, but I don’t see how they came to be justified in the particular circumstances of the litigation before them. The courts at that level should surely deal with the issues they have to deal with and not go into unnecessary matters that may deprive their decisions of some of their force if people get concerned. There was, I think, a simple clear-cut solution in the Jackson case. I don’t think it was necessary in that case to get into those wider considerations. I wouldn’t have thought, with all respect to Lord Steyn, Lord Hope and Lady Hale, that what they were saying would be a baton for other judges lower down in the system to pick up and run with. I think it would be clearly judged as wide obiter, and shouldn’t be taken as typical of judicial views.
(Q 711)
Doubts about the wisdom of the Jackson Three did not, however, mean equivocation about either the rule of law or human rights.
Rule of law, judicial review and human rights
A notable feature of his account of the rule of law was the emphasis that it too was an evolving and dynamic principle, Tony having been concerned to dish Dicey as ‘outmoded’ in favour of an exploration of the ‘main features of rule of law within our constitution today’. His pragmatic and flexible approach to core constitutional principles was, however, confounded by the curious provisions of the Constitutional Reform Act 2005, s 1, two passages from which Tony highlighted in his advice to the House of Lords Constitution Committee. The first was the reference to ‘the existing constitutional principle of the rule of law’, the second being the Lord Chancellor’s ‘existing constitutional role in relation to that principle’. Apart from being a principle that constitutional scholars and parliamentarians have found notoriously difficult to define at all closely, the s 1 formulation not only ‘leaves room for much debate about what is meant by the “rule of law”, but equally importantly ‘adds in a temporal dimension by use of the word “existing”’.
Tony wrote first about the rule of law in the 9th edition of his textbook, chapter 6 of which was a superb analysis, some decades ahead of its time. He wrote at a time of controversial interrogation techniques in Northern Ireland, growing awareness of international human rights instruments, and the emergence of the welfare rights movement. In that chapter he developed two senses of the rule of law, the first essentially a legal principle protecting citizens from ‘arbitrary and harsh acts of government’, ‘requiring the organs of government to operate through law’, and ensuring that ‘a person directly affected by government action must be able if necessary to challenge the legality of that action’. As such it was a buttress for the democratic principle, which can be used to protect the weak and underprivileged sections of society, as well as the strong, Tony asking rhetorically, ‘Why should less legal protection be given to [social security] benefits, on which many citizens depend for their daily subsistence, than to traditional rights of property?’
As it happens, much of Tony’s career was spent promoting the rule of law as a legal principle, from his days in Edinburgh when he coordinated a national training programme for the chairs of social security tribunals, to his days in Oxford when he was a member of the Council of Europe’s Venice Commission for Democracy through Law. Between these two extremes was his role in the development of judicial review, with the Scottish Law Commission and the Justice/All Souls Review, referred to in Part 1. For someone whose career began before Ridge v Baldwin [1964] AC 40 and Padfield v Minister of Agriculture [1968] AC 997, these latter developments in particular must have seemed like extraordinary achievements. And between the two extremes was his work at the Bar, and in particular his role in M v Home Office [1994] 1 AC 377, behind the decision in which Tony was described posthumously by Sir Stephen Sedley as ‘the quiet genius’. Celebrated by H W R Wade as having put the rule of law ‘back on the rails’, this is the case remembered for Lord Templeman’s comment that:
the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.
Tony was aware, however, that although a ‘buttress for the democratic principle’, the rule of law ‘must go beyond the principle of legality’, pointing out that, ‘if all that the rule of law means is that official acts must be clothed with legality, this gives no guarantee that more fundamental values are not infringed’. Engaging now with the rule of law as a ‘broad political doctrine’, the problem was agreeing what these fundamental values might be, a question which Tony acknowledged would be answered by the political starting point of the individual in question. As he said after contrasting the positions of Conservative and Labour lawyers, the Liberal lawyer ‘is likely to support proposals for a Bill of Rights and other means of protecting individuals and minorities’. These other means of protection included the ECHR with Tony exploring how it could be made justiciable some 15 years before the Human Rights Act 1998. Writing in the Osgoode Hall Law Journal in 1983, he was characteristically understated but remarkably prescient, concluding as follows:
For reasons explained above, this article has not entered the constitutional debate for and against the incorporation of the Convention within United Kingdom law. On the basis of this selective survey of Convention practice, the author considers that incorporation would be of value even without attempting to curb the legislative supremacy of Parliament. A statute of incorporation should as a minimum require all those entrusted with statutory powers or duties to have regard to the rights protected by the European Convention. This would then enable the courts to review delegated legislation, administrative policies and individual decisions for non-compliance with the Convention. It would also be desirable to include a provision on the lines of section 3 of the European Communities Act 1972, requiring the courts to decide questions affecting the Convention in accordance with the principles laid down by the Strasbourg Court. It would also seem necessary, so as to give effect to Articles 5(5) (enforceable right to compensation) and 13 (effective remedy before a national authority), to empower the courts to award compensation where an individual’s rights under the Convention had been violated by executive or other subordinate action and where the law did not otherwise provide a remedy.
Readers of this blog will recognize in that passage the Human Rights Act 1998 in embryo. It was followed by a passage on the sovereignty of Parliament, which it was implicitly accepted as fundamental: the issue was not whether such incorporation would affect the sovereignty of Parliament but whether the latter would make such incorporation worthwhile if judicial decisions could be easily reversed. But Tony was not dissuaded by such concerns (which were reconciled subsequently to some extent by the HRA, s 4): ‘it would be unfortunate if the perceived constitutional difficulty were to be a total bar to all movement towards better protection of the individual in United Kingdom law’ (ibid). Within five years of the Human Rights Act 1998 coming into force, Tony was advising the House of Lords Constitution Committee that ‘the case-law includes some remarkable judgments that have fully justified the aim of the Act in enabling United Kingdom judges to contribute to the developing understanding of human rights protection in the 21st Century’.
V
At a time when there is much (pointless) interest in pigeon-holing academics, Tony would be impossible to pigeon-hole. His work was grounded in the reality of political experience, and his approach was characteristic of someone who spent a lot of time nurturing what were once referred to as socio-legal studies. In a revealing sentence in one of his last published pieces before his death, Tony concluded that ‘one-word descriptions of the UK constitution as being essentially “legal” or “political” do not bring out the significance of history in our national life’ (Financial Times, 24 September 2019). My sense is that his constitutional understanding was informed by history, committed to the idea of a living constitution, capable of embracing big changes without losing sight of core values or principles. But these principles also had to adapt so that constitutional arrangements could both easily facilitate change, as well as restrain by law those who would abuse the authority which the British constitution confers.
Professor Anthony Wilfred Bradley QC, 6 February 1934 – 20 December 2021.
My thanks to Chris Himsworth for his advice in writing this appreciation.
K D Ewing, King’s College London
(Suggested citation: K. D. Ewing, ‘Professor Anthony Bradley – An Appreciation (Part Two)’, U.K. Const. L. Blog (15th March 2022) (available at https://ukconstitutionallaw.org/))
UK Constitutional Law Association 