Do we need a crisis?

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John Jackson (London, Charter 88): Stephen Sedley - the Appeal Court judge who made recently some widely reported remarks about the recording of DNA profiles - delivered the annual Mishcon lecture at University College London on Tuesday. His themes, broadly described, were the development of human rights in a constitutional context. There was good stuff in the lecture but two points in particular registered with me.

Although the separation of constitutional powers is discussed traditionally in terms of the executive, the legislature and the judiciary, there are, in the modern world, other powers that must be reckoned with. These include "the political party" which Sedley believes must be kept separate from the state. As he pointed out, the worst abuses of human rights have occurred in nations where the state has collapsed and its functions been taken over by a controlling political party.

In relation to "new" constitutions he remarked that in the best known examples - France, the United States and, more recently, South Africa - the demand for a new constitution was the consequence of change and not the cause of change. Therefore, Sedley cautioned, we should not be surprised if, in the absence of impetus from popular demand, the changes talked of in the Government's Green Paper and the statements by the other political parties result more in a tidying up of the conventions that are a part of our present constitutional settlement than anything very radical.

He may be right, but in taking this line he is on a different tack from Lord Bingham (whose important intervention I have wfritten about). Bingham plainly hopes that the "serious problem" he sees in the latent conflict between the rule of law and parliamentary sovereignty will be resolved in a real review of our constitution.

In June 2006, Vernon Bogdanor (Professor of Government at Oxford) said, in the Magna Carta lecture, "there is a conflict between these two constitutional principles, the sovereignty of Parliament and the rule of law, a conflict which if not resolved could generate a constitutional crisis." Perhaps we need such a crisis to create the popular impetus that Sedley suspects is missing.

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