 Wel.. Sut fan gwb Dear communion and inviting me Perhaps I ought to say that when I'm with Oxford The term, the constitutional expert that's applied to a historian Who's given his telephone number to the journalists And thank you for coming on such a hot day to hear me Now it's clear that in 2015 Mag complex remains a living presence Mae'n gofio y gallwn oedden nhw o'n gwirionedd o'r pols yn 2006, os ydych chi'n bwysig i'n fath o'r cynghorydd y Magnau Carter y 5th yn 15 ym 5th y Ddweud, ddyn ni'n amser eich bobl yngmell? Mae'n adnod i'n arwelfennu wrth yn fath o'r cynghorydd a'r cynghorydd o'r cynghorydd y bydd yn gweithio'n ddiwrnod. A'r cynghorydd yn gweithio'n dweud, mae'n fath o'r cynghorydd o'r cynghorydd o'r cynghorydd yma o'r cefnodi Cymru, O'r 39, mae 39 yn ddau, mae no defnyddio'n ddweud o'r pryd, o'r llwyffau sy'n rhoi'r wneud o gyfnod o'r cyd-feydd o'r wych, o'r pryd sy'n ddweud o'r byth, o'r dyfodol yn y gwybod. Felly, mae'r llwyffau yn dda i gael o'r ddweud o'r cyd-feydd o'r cyd-feydd o'r ddweud o'r cyd-feydd o'r llwyffau sy'n rhaid, oherwydd o'r llwyffau sy'n rhaid, oherwydd o'r llwyffau sy'n rhaid. alempau'r ein chwesteid yn eich cyffredinol uchwyn, mae'n cael bod yn dwysbeth sydd yn creu'r cyfweld yma yng Ngheirio. Mae'n cymhredu beth oedd yn ni'n creu'r cyffredinol yn cyfweld yn cael ddeimlo cynrydor i'r cyfaradol yn cyfweld yn gyfweld. Mae'n cyfrwyng i'r�in o'r cwestes yna cofweld yn cyfweld ac yn cyfrwng rhagor mwy o'r cyffweld yn cymhredu, mae o fydd yn gallu hynny yw'r cyfweld yn cyfweld mwy o ffwrddol iawn. The implication is a Parliament of some sort and the Parliament did, I think, come into existence in the 13th century. Now of course that trips to the no taxation without representation played an important role in the revolt of the American colonists against Britain in the 18th century. ac yn gymrydau cymdeithasol yn mynd i'r clynyddol, ac yn cymddiol i'n cymryd gyffredinol, mae'r Cysyddiannol yn fawr yn gweithio'r cymryd, arian i'r lluniau sydd eu ffwrdd pan yw'r ffioedd. Yn yw'r cymryd yw'r cymryd, ac yw'r cymryd yw'r cymryd yw'r cymryd yn fawr, ac yw'r cymryd yn gweithio'r cymryd yn gweithio'r cymryd, ac yw'r cymryd yn gweithio'r cymryd, y cyfnodd yn ymgyrch yn y cyfnodd. Felly, rwy'n meddwl yw'r cyfnodd yn y cyfnodd. Mae'r prynsbeth yn ymgyrch yn ymgyrch yn 17th o'r cyfnodd o'r periwyr o'r cyfnodd yn y cyfnodd. Mae'r parol yn teimlo yn ddod, mae'r cyfnodd yn gwneud yn y prysbeth yn y cyfnodd ond nid yn cyfnodd yn y cyfnodd. Mae'r cyfnodd yn ddod, mae'r cyfnodd yn y cyfnodd, ac yn cael y gallu gweld y llach fânwg, ac ydych chi fod yn ymweld â'r gwrthu. Mae'n gweld chi lewb—y ehongor i'ch gweld y Llywodraeth Maenru, ac hynny yw'r Llywodraeth Llywodraeth yn unig supportedr. Felly er fyddeugodd yn lle'r cyfwyn Tubech. Mae'r bandwg rhwngfyrd wedi'u liaisonu'r llach fyrddllol. Mae'r bandwg rhwng fydd yn ymwelch, fe wydd yn ymweld yn elif, eich fydd yn cael ei wneud. A gyddon yma yn cael ei wneud, Ieithio datblygu a chyfnod ac rydych chi'n ddweud i'r hyn, ond mae'n ddweud i'r byw yng Nghymru, yng Nghymru yn oed yn oed yn rhagleni'r prysgol yn Grifolol Llywodraethau Llywodraethol, y Prysgol yn unrhyw ddechrau, yn y Llywodraeth Llywodraeth. Ond mae'n ddweud i'r cyfreunio bod fath yn gyfer y Rhywodraethau, mae'n ddweud i'r prysgol yn ysgol yn oed yn ddweud i'r hyn. A rwy'n gwrs, ti'n llei'r ystafell, chi'w mawr y llei, ond yn unrhyw biadïad, iawn yn chrysydd, a hoffr iawn i rhai yr unig hawdd cyhoeddiol yn rhaid i'w dod yn cleidio. a chyddaf, yn aglw�m, yn felly yn ni i'w cael poddur o'r llwyr cyllideb hynny, yn gwneud o'r cyffredinol, sydd wedi'i cael potig o'r golygu. A llwyddo, yn y rhai cyfraffiau ar gyfer y Rhef northwestr, yn ysgrifnaid yng nghaeddaeth, i'n sylwg bod y ddefnyddio'r ddysgu wrth hyn o'r bwrdd, yn ychydigodd yma i'r ddweud yma hwn ar y cael gwaith. Felly, y ddechrau'r darnodd ym Mhwng Gwyrdog wedi'u gwneud y byddai'r ddweud yn rhoi y Prifysgol yma i'r Lhaegdor, rym ni wedi'n ei ffamilydd i'r ddweud yma. A yw 1641, y Llyfr Ddraffod erbyn ei ddweud i'r ddweud i'r ddweud i'r ddweud i'r ddweud i'r Gwrdd Gwrdd. Felly, o ran y Llywodraeth Gweithio, mae Chael yn eich gweithio cyd-egwyd. A yn 1649, mae Gweithio'r Llywodraeth Chael, beth bydd yn y DU, wedi ddiweddar o gweithio'r gweithio'r llyfridd yng nghymru a oedd y Llywodraeth Gweithio yn lleolol am gweithio'r Llywodraeth. A yn ddiddordeb yn gweithio'r Llywodraeth yn gweithio'r Llywodraeth Gweithio. A cyd-egwyd am gweithio'r Llywodraeth, ac bod, rwy'n amlwg, yn 1681, parlyd yn yr enwedd yn fuddeithio'r ymdau cyd, oed yn ddau rwy'n oed ond, ond rwy'n newyddol yn cael bod y llanonr lle gwylio'n cyd-grinedd i partai am y gallu Llywodraeth yma, ac yn ei gweithio'n gwmeidydd a'r regangodd. Rwy'n ail, yn fawr, oedd, o ran y presbydd Genedlaeth Cymru yn ystafell yma yn 1689, One of the charges against him was that of having violated the fundamental law. Now many of those who preached this doctrine of fundamental law believed it to be embodied in the common law, a body of judicial doctrine based on principle. And for those who thought in this way, a statute did not create law that declared what the law actually was. And the task of common law of judges was to act as an ultimate court of appeal in constitutional matters. The supreme court that you are likely to have heard of before is the law of suffering and the judges alone would understand its mystery. And that idea that common law of constitution has been resurrected in our own times, most notably by law and justice laws. And many have seen the origins of that particular idea, and I would say Edwin Cook, who was Chief Justice under James Hurst, and Cook declared that Magna Carta in 1628 that it is such a fellow that he will have no sovereign and will have Magna Carta's sovereign monarchy. But Cook's ideas were, I think, wrong and confused, and it never, I think, occurred to him that there could in fact be a clash between the common law and the executive. And his hostility was directed, certainly not to Parliament, the Solitude of Parliament, but not the Royal Parology. The first people to use the idea of Magna Carta as a weapon against the Solitude of Parliament were the 17th century levellers. And to them, and we, and I think the Americans, were the idea of fundamental law and of a written constitution. Now, in 1647, the levellers drew up the first of three agreements of the people, according to which Parliament was to be limited by fundamental law which was unalterable. And under the terms of that agreement, Parliament could not legislate against the freedom of religion. It could not exempt anyone from the due process of the law. It could not abridge the freedom to trade abroad. And it could not impose death penalty except for murder. Above all, perhaps, it could not abolish trial by jury. Now, a third agreement of the people drawn up in 1653 went further and declared that all laws made or shall be made, contrary to any part of this agreement, are thereby made null and void. In other words, traditional review judges can strike down such laws. And I think that third agreement is perhaps the first modern constitution in European history. People sometimes say our first constitution with Oliver Cromwell's constitution of 1653 is through the government. And, indeed, Cromwell told the first of Parliament his protectorate in 1654 that in every government there must be somewhat fundamental, somewhat like a Magna Carta that could be standing and is unalterable. And that instrument of Cromwells did also contain unalterable provisions such as that providing for freedom of conscience in religion. And Parliament should not make themselves perpetual because Cromwell said that what assurance is a law to prevent so great and evil if it lies in one of the same legislator to outlaw it again. But at Cromwell I think he is not a very happy founder of the first constitution because it came after it abolished the House of Lords. And shortly after his constitution he abolished the House of Commons so I think his title to be a constitutionalist was a bit dubious. Now, after the restoration in 1689 the idea of fundamental law receded. But even so the myth that Magna Carta survived Berk, whom I've already quoted twice, said in his reflection on the revolution in France, our oldest reformation is out of Magna Carta. Now the idea was resurrected across the Atlantic by the American revolutionaries and indeed it's audible that Magna Carta had more influence in America than in Britain. And the ideas of the levellers were to be embodied in the American constitution. But in Britain following the glorious revolution of 1689 the weak time is symbolised by the Bill of Rights. Now that was very different from the American Bill of Rights because it did not serve to entrench fundamental rights against legislative majorities. Instead it was a statute guaranteeing the rights of parliament against the king. No limitations were placed upon the king in parliament as a legislator that powers remained unlimited. But the balance of powers altered in favour of parliament against arbitrary rule by the king. So it secured the powers of the legislature against the king and emphasised the doctrine of the undivided sovereignty of parliament. And later on in the 18th and 19th centuries ideals of fundamental law came to be superseded by utilitarianism, a scientific philosophy for whom the whole idea of rights as a standard by which to judge law was a superstition. For Bentham's famous comment that natural rights were nonsense and natural rights were nonsense on stillness. But in the 20th century, certainly the second half of the 20th century, utilitarianism has been in retreat and the dominant philosophies of law and government, such as those of Rawls and Warhead in America in particular, repudiated and find a lot more attractiveness in older ideas of fundamental rights. It's very difficult to accommodate rights within utilitarianism and indeed as Bentham argued in Parliament's sovereign, how can you have rights against power in Bentham's and the only rights you can have are legal rights, rights recognised in law. The idea of a moral right against power is nonsense. There's a conflict between utility and rights, but the climate today, the intellectual climate today I think makes it easier to understand what a number of British thinkers about sovereignty beginning with Hobbes I think didn't understand how the ideas of parliamentary sovereignty and the rule of law can come into conflict with each other. If you believe in parliamentary sovereignty, they don't understand you. So this principle, which is somehow there in Anglicato, that government should be subject to law, and in my view it's a more important principle than the democratic principle, because the danger of the democratic principle is the assumption sometimes made that a majority that has one power in a free election has the right to govern as it likes as it wishes. It's worth remembering that the Nazi party in two indubitably free elections in 1932 secured a far higher vote than any other political party in Germany, and before Hitler came to power he said that if we came to power legally we could then break through legality. The fundamental principle of democracy said rounds all power from the people, and then during the war in January 1941 Hitler said the National Socialist Revolution defeated democracy through democracy. It's also worth noting more recently in 1918 that Iranians voted in a free election for a democratic republic in which human rights are barely existing. Now, government under the law then means much more than elections. It means also that there must be respect and freedom for the opposition parties, free access to the press and other media, and independent judiciary with the power to check government, civilian control of the armed forces, the removal of the military from politics and above all respect for human rights. A wealth-functioning democracy cannot exist without these other phenomena. Indeed, I think it's arguable that the vote is the last rather than the first stage of creating a liberal democracy because universal franchise without the rule of law is as likely to lead to tyrannium or anarchy as it is as a democracy. And both Britain and the United States have governed such the law long before they became democracies. Indeed, you may argue Britain did not become a full democracy until comparatively recently in 1928 when women were given the vote on the same basis as men. But long before that British government had been regulated by the rule of law. And, of course, one of the signs of the constitutional democracy is that no one is above the law. And in the 1970s, Richard Nixon, the President of America, said when he was accused of criminal offences after the Watergate break-in that if the President does something it cannot be illegal. And the Watergate prosecutors proved him wrong and he was forced to resign the Presidents into avoiding the picture. And in Britain, the Lord Denig, as master of the role, has reminded the minister in one case in the 1970s, be you ever so high the law is above you. And, of course, this principle that no government is above the law is involved in most democracies in a written constitution, which we, of course, do not have. We are one of just three democracies without one, the others being New Zealand and Israel. If someone once said, the British constitution is not worth the paper it isn't written on. Now, there are a number of reasons why we haven't thought it desirable to put this principle of the rule of law into a constitution. And I think the main reason is that we've never really had a constitutional moment since the 17th century, that our system of government is marked by evolution and adaptation, without sharp breaks since the Civil War of the 17th century. And significantly after that experience with the Republic, we referred to 1660 as a restoration as if there had been no break at all. We've never had the breaks of continental countries. France, by contrast, has had 16 constitutions since 1789, since the French Revolution. The fifth current fifth republic is the second longest lasting one, though it has existed only for 57 years. The story told of someone who, in the 1950s, went to a shop in Paris to ask for a copy of the constitution and has told, I'm afraid we do not sell periodicals here. This pattern of constitutional development does differentiate Britain sharply from the constitution. You look at many countries on the continent, how recent their constitutions are. France in 1958, Germany in 1949, Italy in 1947, and most of the ex-communist countries of central and eastern Europe in the 1990s. Whereas our system of government gave back the same institutions of monarchy back before the Normand and Commonwealth Parliament in medieval times. This, I think, explains some of our difficulties in the European Union. The 19th century constitutional theorist, Dysi, said that our constitution was a historic constitution. By that, he meant not merely that our system of government was very old, but that it was a product of evolution, not designed or planned. It developed spontaneously. You can get together, and in no time have you got together, that this should be our system of government. It never happened. It developed spontaneously. There's a second reason, a principle, not a historical reason why we don't have a constitution. It is very obvious that if you hold a principle in sovereignty of parliament, there's no point in having a constitution. The British constitution could be summarised in eight words. What the Queen of Parliament demands is law. If you do ever have a constitution, the first consequence must be that parliament must formally abdicate its sovereignty. It was said in the 18th century, one constitutional theorist said that parliament could do anything it likes except turn a man into a woman, or a woman into a man. But even that's not true, because if parliament had to the purpose of the law, a man is a woman, a woman is a man, that would actually be the case. So you may say, well, what value does Magna Carta have if it is actually the mercy of parliament, or in effect of government, since after all most governments do have a majority of parliament, and governments in Britain have been limited, not by constitutions, but by non-legal rules called conventions, and in conventions there are certain things that no government would ever do. They're not illegal, but British government, but parliament could pass an enactment saying that all red-headed people should be executed next Monday. But in practice it would not do that, no. But the trouble with conventions is that their precise scope and nature are not always clear. Over a hundred years ago, one constitutional theorist declared that Britain was governed by a system of tacit understandings. But he said these understandings were not always understood, and perhaps the same is partly true today. But what we've seen, I think, in the last 45 years, and in particular I think the years since 1997, has been a constitutional revolution in Britain. The revolution began with our entry into the European community, as the European Union was then called in 1973, and continued with the devolution legislation of the late 90s, and fundamentally I think with the Human Rights Act. And I think these changes have fundamentally altered our system of government, and our competition, and the role of the rule of law in it. You may remember the story of Rick Van Winkley, who fell asleep for 20 years in 18th century America. And when he went to sleep, he remembered a pub called The George, and it had a picture of George III on it. When he woke up after 20 years, the pub was still called The George, but the picture of George III had been replaced by one of George Washington. Now I think we don't notice the changes, the same changes in our system, because we do not have a constitution. And the 19th century constitutional thinker Walter Gadget said, an ancient and ever-aughtering constitution such of the British is like an old man who wears with attacked homeless clothes in the fashion of his youth. What you see of him is the same, what you do not see is only altered. And first our entry into the European community marked a very fundamental difference, which we're changing, we're only just beginning to notice. Because it meant that there was a system of law, at least from the point of view of the European community, which was superior to that of Parliament. And this is very clear in our attitude, for example, to immigration. Now there are many people who say we would like to restrict immigration from the European Union into Britain. But this is something Parliament cannot do because it's an offence against the principle of the free movement of peoples which is in the Treaty of Rome, which we signed up to. So something that Parliament might want to do for something it cannot do for better or worse. Now, from the point of view perhaps of the British Parliament, the Parliament remains supreme, it could in theory perhaps, but it will repeal the European Community Act. But for the moment there is something that Parliament cannot do. And the most important case in 1991, the so-called Thattertain case, where for the first time in British history the courts refused to apply part of the statute, the Merchant Shipping Act, because it was contrary to European law. And this act restricted the rights of foreign fishermen to fish in British territorial waters. And the Spanish merchant ship brought a case against Britain, where the European court, as you'd expect, and this was illegal under European law and discriminatory, but what wasn't expected was that British court also said, we're not going to apply this law because the presumption is that Britain was intended to abide by the rules of the European Union. So that's a fundamental change and it limits, in my opinion, the sovereignty. But more fundamental still I think is the human rights act of 1998, because previously our rights were residual, that you could do anything you weren't prohibited from doing by law. But the human rights act sets out a list of positive principles based on the European Convention of Human Rights that determine what our rights are. And it's for the judges to interpret legislation in terms of what is a higher law than principles of the European Convention of Human Rights. Now, again, if you say that Parliament's sovereign, there can be no such higher law. There can be no law which Parliament can't change, no fundamental of constitutional law. Now, the Human Rights Act preserves that formally because the judges, if they believe that a statute or part of the statute that goes against the European Convention, they can't do what, for example, the American or German courts can do, they can't strike it down. What they can do is issue a declaration of incompatibility. They can say this statute is incompatible with the European Convention. Now, such a declaration has no legal force. It's a statement. It's a pure statement, no legal force. It's then up to Parliament to decide how to act. And there's a special speedy process by which Parliament can, if it wishes, overturn the offending statute or part of the statute. And in fact, on every occasion, it's fair to say, since the courts have issued such a declaration, on every occasion so far, Parliament has actually done it. It has put things right. It doesn't have to, but it has done so. It may be a convention is growing, but Parliament should always do that. We don't yet know whether that's true or not. And the human rights act, therefore, established that peculiarly British having compromise between two incompatible principles, the sovereignty of Parliament and the rule of law. And I once asked a senior judge what would happen if these principles conflict, which they would easily do. Let's say that the courts found that a particular statute dealing with suspected terrorists went against the European Convention. And MPs then said, this is shocking. This is handicapping our ability to deal with terrorism. We can't have this. And the popular papers had headlines saying, you write your MP telling them to ignore these radical judges with their feet in the air and so on. And you tell them to go ahead and say, that could easily happen, populist pressure against an unpopular judicial decision. And I once asked a senior judge what happens if these two principles conflict the sovereignty of Parliament and the rule of law. And the judge smiled at me and said, that is a question that ought not to be asked. It's a more of a response to a logical level. So that, too, is, and let us say, I think the Human Rights Act is the most fundamental part of our new constitution, which provides for a compromise between two doctrines which you may think are conflicting. Now, what it means is that the main burden of protecting human rights is now with the judges. The role is going to become more influential. Now, many of these cases that judges deal with connecting with human rights are as I implied in what I said about terrorism. There are, they deal with the rights of very small and very unpopular minorities. Suspected terrorists, prisoners, asylum seekers, even if you like, suspected pedophiles. And life would be much simpler if victims of injustice were always attractive or nice people like ourselves, but they aren't. And probably our legal system is rather good at securing justice for nice people like ourselves. The Human Rights Act seeks to provide rights for everyone, whether they're nice or not. And that is, I think, the problem. Now, I think, as I indicated, the compromise of the Human Rights Act is fairly tenuous. And I thought, when the act was passed, that there would be a conflict between government and the judges. But I thought the conflict would not occur for quite a long time. And on that, I was wrong. The conflicts occurred much sooner than I thought. And as you know, the present government is promising to repeal the Human Rights Act and to replace it with a British Bill of Rights and responsibilities whose scope is as yet unclear. Now, I think it's remarkable how rapidly the Human Rights Act has led to a conflict between the government basing itself on the principle of the sovereignty of Parliament and the judges basing themselves on the principle of the rule of law. And this has come very, very rapidly. And it's come about because the act presupposes and assumes that there's a basic consensus between Parliament and the judges and that any infringements of human rights occur in adversity and unintended and therefore there's not going to be much disagreement between the government and the judges. But I think there is no such consensus when you come to the rights of unpopular minorities and I suspect if one took a survey here, people would disagree very strongly on these issues. And two matters in particular, issues concerning asylum seekers and issues concerning suspected terrorism have come to the fore since the Human Rights Act came into force. And these problems, of course, predated the act. They've grown in significance since the act was passed and they're very emotive and politicians believe that if they don't take action against them they will lose support in the country. And terrorism in particular, as we've seen in recent days, has taken on a different form since the Human Rights Act had passed. We were accustomed to that, to a different form of terrorism in the IRA which was, in a way, of what we might call old-fashioned form of terrorism with a single specific and concrete aim, mainly the reunification of the Ireland of Ireland. But now we face a problem of global terrorism more ruthless in form with wide, if not unlimited, aims amongst which is the establishment of a new confate. And apparently it has the terror of their terrorist cells in a large number of countries. And to deal with this new form of terrorism, the government argues, new methods are needed which may well infringe traditional views about human rights. Now the judges reply, we should not compromise our traditional principles, principles which have been tried and tested over many centuries, and served as well. And some senior judges have gone further. They've said that the natural consequences of the Human Rights Act should be an erosion of the principle of the sovereignty of Parliament. They say the sovereignty of Parliament is a construct of the common law and if the judges can create it, they can equally justifiably supersede it. And in a landmark case in 2005, Jackson v. Attorney General which dealt with hunting, that's more strictly relevant, dealt with the validity of the Hunting Act. And judges for the first time declared, obiter, that Parliament's ability to pass legislation is limited in substance. And Lord Stane, the senior judge on the Supreme Court, said the principle of the sovereignty of Parliament, while still being the general principle of our constitution, was a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise when the courts may have to qualify a principle established on a different hypothesis of constitutionism. And he said in exceptional circumstances, in both an attempt to abolish judicial review of the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of the House of Commons cannot abolish. And he's since elaborated by saying, this will be so if the government tried to tamper with the fundamental principles of constitution democracy, such as five-year parliaments, the role of ordinary courts in the ruling law. And another senior judge, Lady Hale said, the courts will treat with particular suspicion and might even reject any attempt to subvert the ruling law by removing governmental action affecting the rights of the individual from all judicial powers. And a Scottish judge, I think significantly a Scottish judge, because the Scottish law is the most skeptical of the sovereignty of Parliament, Lord Hope, said Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled. It is no longer right to say that it is treatment and legislated in the midst of no qualifications, whatever. Step by step, gradually but surely, the English principle of the absolute legislative Parliament is being qualified. And he said the rule of law enforced by the courts is the ultimate controlling actor on which our constitution is based. Now the implication of these remarks is the sovereignty of Parliament, a doctrine created by judges which can be superseded by the judges. And they'd like to see this done. But the great constitutionist in the 19th century, Dicey, who really was the first to elaborate on the doctrine of sovereignty of Parliament, he said the roots of the idea of Parliamentary sovereignty lie deep in the history of the English people and in the peculiar development of the English constitution. Now can the judges on their own supersede that principle? Now survey evidence indicates, perhaps you won't be surprised to hear, that judges are trusted more than politicians. Now even so, would the people be prepared to grant the judges extra powers? Probably not. In 1997, the Labour government produced a white paper bringing rights home before the Human Rights Act in which it said there was no evidence that the public wanted judges to have the power to invalidate their decision. And perhaps nothing has changed since then, perhaps that's still the case. But whatever the state public opinion, it's clear, surely, that there's a conflict between these constitutional principles, the sovereignty of Parliament, and the rule of law. And this conflict could, in my view, be a rise to a constitutional crisis. And what I mean by a constitutional crisis is not simply there are differences of view in constitutional matters. That is to be expected and inevitable when any healthy democracy can differ about the constitution. I don't mean that. That is the difference of view as to how the conflict should be settled. Now, in any society, a balance has to be drawn between the rights of the individual and the needs of society for protection against terrorism, crime and so on. But the question is who do you believe should draw the balance of judges or the government? Now senior judges, I suspect, would say they've got a special role in protecting the rights of unpopular minorities. And they would say, in doing so, they are doing no more than applying the Human Rights Act as Parliament is asking to do. The government, and one suspects most MPs and much of the press, would disagree. They would say it's for them as elected representative to weigh the precise balance between the rights of the individual and the needs of society. They would say they were elected not to the people when the judges are not. And they would say the Human Rights Act provides for the judges to review legislation but should not be an excuse for judicial supremacy. And they say if the judges or anyone else believes as a taste for Supreme Court of American lines they should make that case publicly and seek the explicit approval of Parliament and people. They should not seek to expand their role by self. Because there's a profound difference of views as to how these questions should be resolved. Governments say they should be resolved by Parliament. The judges think they should be settled by the court. And for that reason both sides are coming to believe that the other side is undermining the constitution. Government and Parliament say that judges are usurping power and seeking to thwart the will of Parliament. Judges say that government is infringing human rights and then attacking the judiciary of doing its job in reviewing legislation for its compatibility with the Human Rights Act. So the British constitution is coming to mean different things to different people. It is coming to mean something different to the judges from what it means to government, Parliament and many other public. So the argument from Parliamentary sovereignty points in one direction argument from the rule of law points in another. So there's going to be a conflict. How will it be resolved in the two outings? The first is Parliament succeeds in defeating the challenge of the judges and Parliamentary sovereignty is preserved. And the corollary would be that Parliament refuses in some future occasion to take notice of a declaration of incompatibility. The second possible outcome is the Human Rights Act comes to Trump Parliament and in practice a declaration of incompatibility by a judge comes to be the equivalent of striking down legislation. It's too early to tell which outcome is more likely to prevail. And what seems to be unlikely is that the compromise involved in the Human Rights Act can survive in the long run. I think we're present in a transitional period and eventually no doubt the constitution will be settled. Well there could prove a painful process and the path may be a difficult one with many schools and stores on the way. Now I think different members of the audience will have different views as to how this conflict should be resolved and perhaps it's not my job to persuade you of one view or the other. But let me make one point in conclusion and let me make it by quoting from Kiplio's famous poem called The Reeds of Runnymead when he said this as part of that When through our ranks the barons came with little thought of praise or blame but resolute to play the game they lumbered up to runnymead and there they launched in the solid time the first attack on right divine the curt and compromising sign that settled John at runnymead at runnymead at runnymead at runnymead your rights were won at runnymead the whole poem is well worth reading Now as I said earlier in the 17th century constitutional reformers repudiated the doctrine of divine right of kings right divine as Kiplio calls it Now do we replace that for the divine right of the people or parliament or governments against which the doctrine of national sovereignty offers no protection Are we going to yield to governments what we didn't in the past yield to kings namely un-channeled power Now one response might be well governments unlike kings are democratically elected but as I said earlier and I quoted from Hitler that a democracy can be the despotic is not more despotic than traditional government and Hitler's dictation is the worst I think in the 20th century that's the worst in history which came to power as a result of free elections and therefore it seems to me that if you believe in the rule of law ultimate power should lie not with parliament nor with the people but a constitution whether written or unwritten Now I accept that a constitution is not sufficient to protect human rights on the state which Hitler took over already had a very democratic and liberal constitution and a constitution may be necessary that's arguable but it certainly isn't sufficient and the condition of society in matters also and that's where Britain perhaps does work for well In the 19th century John Stuart Mill famously criticised Bentham for believing that a constitution was a mere set of rules or laws rather than a living organism represented of an evolving political morality and Dicey said that the quality of the legal system depended on the quality of the society which it served and he made what he may think is an arrogant statement that British were more confident in the 19th century now and he said the rule of law of the predominance of the legal spirit may be described as a special attribute of English institutions and what he meant was that our law rested upon a public opinion that supported the protection of human rights and he wrote a famous book on the constitutional law of the constitution but he wrote another important book called Law and Public Opinion in the 19th century to complicate it because he said the protection of rights depends not only on laws and institutions but a spirit faithful to human rights and perhaps that spirit originated with Magna Carta and perhaps that is why we are celebrating Magna Carta in the 800th anniversary Thank you