Whose Magna Carta is it anyway?

90291Yesterday was Magna Carta Day. It is now only 364 days until the 800th anniversary of the sealing of England’s oldest charter of rights, and one of the world’s most influential legal documents.

There will be much celebration in the coming year, and rightly so. Despite its age, Magna Carta is still partly on our statute books. It represents the first legal constraints imposed on the English king by his subjects. It has influenced every major rights law since – notably, the United States Constitution and the European Convention on Human Rights, both of which are very much still in force.

According to the Magna Carta Trust, there will be eight century beer, festivities, new books, an opera, a calypso tribute and even a new roundabout on the A308 at Runnymede. And if a new roundabout isn’t “English” enough for you, there will of course be lots of dressing up in silly costumes.

But along with celebration, there will be disagreement. It has already started.

Politicians are already claiming Magna Carta as their own. Earlier this month, the Shadow Justice Secretary said that Labour would “use the 800th anniversary of the Magna Carta – the world’s first bill of rights – to assert the role of British courts vis-à-vis Strasbourg.” For Labour, the Human Rights Act 1998, which was passed at the start of its last stint in government, is Magna Carta’s modern descendant.

Meanwhile, in last week’s Mail on Sunday, the Prime Minister wrote his own stirring defence of British values, which for him include “a belief in freedom, tolerance  of others, accepting personal and social responsibility, respecting and upholding the rule of law“. These values are, he says, as British as fish and chips, which given that dish’s origins in the Portuguese Jewish community, rather brings to mind the famous Blackadder bit on being “as British as Queen Victoria“.

The Prime Minister promises to use Magna Carta’s anniversary as an opportunity to teach children “proper narrative history” and inculcate immigrants with values which are the “core of what it is to live in Britain“. Although he does not mention Muslims, the article is obviously grounded in the current debate over so-called “Trojan horse” religious schools.

It is easy to be cynical about politicians appealing to national historical values which happen to support their own modern legislative agenda. In reality, the “values” of Magna Carta are diffuse enough to justify  multiple interpretations. As David Allen Green points out in the Financial Times, much which is said about Magna Carta is myth. The limited articles which are still on our statute books have little if any legal effect, although they are occasionally rolled out by judges trying to speak with the voice of the ages: see, for example paragraph 23 of the Steven Neary judgment on the rights of the disabled, or paragraph 21 of this judgment on unlawful detention.

But the same could be said about any part of our national heritage. As with any foundational myth, Magna Carta means different things to different people. Nobody “owns” heritage, and celebrating another great British tradition, we will probably argue about what it really means more than celebrating it.

Let me add three of my own points.

First, what the Prime Minister doesn’t say in his 1,200+ word article is illuminating. He appeals to freedom, tolerance of others, equality and the rule of law. But he fails to mention any of the modern laws which enshrine those values: the Equality Act 2010, which along with its EU-inspired predecessors, outlaws discrimination on grounds of disability, sex, race and religion. Or the much-maligned Human Rights Act 1998, which enshrines into UK law the rights contained in the European Convention on Human Rights, which was significantly influenced by Magna Carta and the Bill of Rights 1689.

What does this absence mean? In part, the PM is appealing to a simple, perfect ancient past, preferable to the messy present with its complex compromises between Europe and the UK, government and the judiciary, politician and citizen. The fact that the PM reveals his favourite book to be a history of Britain ending at Queen Victoria suggests he finds the modern age a little inconvenient.

A second possibility, and one which I think is quite likely, is that although the PM pays lip service to the “rule of law” – as he must, for Magna Carta Article 29 is the only one which is truly relevant today – it is questionable whether this government truly values  judges and lawyers as protectors of basic values.

When I gave evidence to the Joint Committee on Prisoner Votes, one thing which stuck in my mind was the comment of the chair Nick Gibb MP that we have a “very vibrant, old and mature democracy… we are confident in our systems, in this country, and that is something the court needs to take into account” (see here, p.631). I suspect that is the view of many in the senior cabinet – that the true historical protectors of British values are elected MPs, not judges – which explains the constitutional carnage currently being wrought through reforms to Judicial Review, Legal Aid and human rights.

The reality is that politicians like to talk about separation of powers and constraints on the state, but they find the reality of being limited by those constraints uncomfortable.

Second, it would be a great shame if the anniversary of Magna Carta was used to educate school children about this crucial part of our history without giving them the modern context. Magna Carta should not be taught in a vacuum. We should be proud of the immense influence British (Conservative!) politicians had on the forging of modern rights instruments – see here and here. One of the great failures of recent governments was not selling the Human Rights Act to the people, and that failure has been compounded by the recent decision to remove human rights from the school curriculum, to be replaced by “precious liberties”, which presumably will involve reading the PM’s Mail on Sunday article whilst eating Portuguese fish and chips.

If the politicians and public are concerned about the influence of fundamentalist religious values, they should be looking for the simplest and most effective means of teaching liberal values. That is the European Convention on Human Rights. It was designed (by Conservatives!) to protect liberal values against totalising thought systems – particularly fascism and communism. It was also drafted to be simple enough for children to understand. If the Prime Minister is looking for examples of how “British” values of tolerance and decency have been enforced, he would do better to consider key cases in the short history of the ECHR, rather than making vague appeals to diffuse values.

Finally, a major issue in the 2015 Election, which falls shortly before the 800th anniversary, will be whether we want to keep the Human Rights Act or replace it with a British Bill of Rights, as the Tories want. The lead-up to the anniversary presents a wonderful opportunity to reignite the national conversation on what legal rights we need in the 21st century.

We need to have a proper debate, not hide behind rhetoric about ancient liberties and fish and chips. The Conservatives should reignite their historical enthusiasm for the ECHR, and Labour must accept its own mistakes in failing to sell it to the country. Producing a rights instrument which the whole country supports would be a true celebration of Magna Carta’s great legacy.

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13 thoughts on “Whose Magna Carta is it anyway?

  1. You write, “Finally, a major issue in the 2015 Election, which falls shortly before the 800th anniversary, will be whether we want to keep the Human Rights Act or replace it with a British Bill of Rights, as the Tories want.”

    We already have a Bill of Rights and obviously if a new Bill of Rights is brought in and accepted it would destroy our long standing Bill of Rights 1688/9 and perhaps even Magna Carta-but maybe that is what these proposals are all about? Remember, we went through two World Wars to keep them rather than allow foreigners to destroy them by making us use any foreign laws.

  2. This is my take on Cameron’s reference to the Magna Carta & Values –

    “….David Cameron has deigned these values to be “belief in freedom, tolerance of others, accepting personal and social responsibility, respecting and upholding the rule of law“, as I consider these to be in the main, the very ideals Government Policies are removing from the majority of the British public.

    Definitions of Freedom include:

    personal liberty, as from slavery, bondage, serfdom; It has been argued on numerous occasions that WorkFare, where people receiving benefits are forced into unpaid work or lose their social security is in direct conflict to personal liberty.

    Tolerance of others for me refers to challenge of inequality and the ‘isms’ and enforcement of The Equality Act (2010); The irony of this is the Governments Austerity Measures have witnessed as rise in racism, sexism, domestic violence, ill health of disabled people, homophobia, and poverty; all which indicate a growth in intolerance of others, as does the Governments own rhetoric on the adverse effects of immigration.

    Personal and social responsibility appears to refer to an unwritten obligation we are all supposed to adhere to; as we ostensibly choose our own actions we are therefore responsible for the outcomes, and that we all have a duty to act for the benefit of society as a whole. If this is the case, the actions of the Government which continue to ensure the 1% wealthiest members of the UK, prosper at the expense of the majority, clearly do not comply with this ‘value.

    respecting and upholding the rule of law – The ‘rule of law ‘is a system of rules and rights that enables fair and functioning societies; Government Polices have seen reductions of workers rights, of right to appeal against deportation, and access of right to justice as examples.

    The above are merely examples of precisely how the Government’s behaviour demonstrates its commitment to so called ‘British Values’ and given this, I contest the ideology behind this campaign is another attempt at Social Control. It is well documented where a society shares values, they quickly become the ‘norms’, the acceptable ways of behaviour; thus the adoption of these British values allows Government to behave in a manner that suits the rulers.

    I do find it ironic that Cameron has ‘attached’ this campaign to the 800 year anniversary of the signing of the Magna Carta. This was after all the baronial uprising against the reigning king; is he really suggesting the Elite overthrow the Monarchy or, and more likely in my opinion, reasserting that those not of such high birth are not worth of Right at all?….”

    http://jaynelinney.wordpress.com/2014/06/16/why-is-thegovernment-arguing-for-british-values/

  3. Leave well alone the Politians want to dicate and are doing so now, the principles have all but gone from ancestors!

  4. “the Equality Act 2010, which along with its EU-inspired predecessors, outlaws discrimination on grounds of disability, sex, race and religion. Or the much-maligned Human Rights Act 1998″

    Er, pardon me. But those Acts allow discrimination against men in so many circumstances that, from a male point of view, they are nothing but cruel jokes.

    e.g. …

    http://www.angryharry.com/eshumanrightsact.htm

  5. Isn’t one of the outstanding faults of any argument using Magna Carta as symbolic of liberty is that, if you actually read Magna Carta, and take it beyond its prima facie meaning, it seems to everything that politicians claim it not to be. First, that it, at best, an aristocratic protest riot, hardly liberty for the masses, most of the clauses apply to land owners only. Second, it talks of the oppression and enslavement of the Welsh, the Norsemen and the Jews, indeed, that is anything but liberal. Third, it makes references to proffers, these are anything but justice, these are essentially payments to access justice – that’s hardly the rule of law. And, fourth, Magna Carta, or at least the 1215 version was never actually enacted into law. Shortly after signing it John rejected it and used Innocent III to declare it uncanonical and excommunicated the Barons. Given this, I find it utterly puzzling that any politician uses it to be representative of liberty and freedom. Therefore, if Magna Carta is a symbol of liberty, Chris Grayling is a symbol of justice…

  6. The Magna Carta of 1215 isn’t on the statute books in any shape or form, it having been annulled a couple of months after it was sealed by King John. The Magna Carta of 1297 (which makes no reference to the Magna Carta of 1215 but does refer to a charter of Henry III) is still there but its territorial extent is limited to England & Wales. In any event, the Magna Carta of 1215 has a forerunner in the form of Henry I’s edict of 1100.

    • Indeed, much of Magna Carta can be found is Leges Henrici (which doccuments the coronation charter or 1100), particularly the clauses that actually make an attempt at constitutionally define the position of the King.

  7. Celebrations such as this have a great deal of utility about about them. They serve to reinforce and perpetuate the idea that if an individual believes he has enforceable rights against the state then that is as good as the real thing. The underlying reality is that any right, no matter how clearly stated or absolute is illusory if the individual intended to benefit has no means of vindicating them. Political rights are no rights at all if the individual cannot access the courts by way of judicial review. Social rights, such as employment rights are no rights at all if the state has raised the cost of accessing tribunals beyond the means of the minimum-waged to access tribunals. It is very easy to point to a rights-conferring statutory provision as evidence of the State’s commitment to fundamental rights but less easy to explain and justify its non-availability to those who will never be able to access them.

    Nearly all of Magna Carta has vanished. What lives on is the idea it represents. What lives today is not the existence of substantive rights that are enforceable before the court by a large percentage of the population, rather, it is the myth that such rights are actually accessible and enforceable by those who have yet to wake up to the idea that they are effectively disenfranchised.

  8. I find your mention of the skewed relationship towards separation of powers particularly poignant. Looking into Britain from the outside, it sometimes boggles the mind how readily the judiciary will defer to the government as soon as the latter puts the stamp “national security” on something. This invalidates the concept of checks and balances utterly. Comparing with Germany, where the Constitutional Court has publicly flayed both the government and the security services repeatedly and even successfuly defied the EU on telecommunications data retention legislation, it’s a stunning

    In the end, it boils down to the simple question: What use are rules if there is no neutral arbiter to judge whether one is compliant? As long as the government can define itself into compliance at its leisure, any and all freedoms and standards are little more than lip service. The fact that the government tries to erode that even further by inhibiting access to legal recourse through financial hurdles is disconcerting.

    • Judicial appointments in the United Kingdom are made by an ‘independent’ selection panel. Unfortunately, the government use the word ‘independent’ in much the same way as authoritarian states use the phrase ‘peoples democratic republic’. In this sense, the Lord Chancellor, Chris Grayling, whose ‘independent’ role has already been called into question by the Joint Committee on Human Rights has an absolute veto over anyone selected for a judicial appointment by the independent appointments committee. A veto he can and does exercise. In this way, the government get the judges it wants. One may raise such inferences as appear proper from the decision to elevate a mere QC to the Supreme Court without any requirement for him to follow the normal career path of holding appointments at various levels of the appellate courts.

      This may also help to explain the reason why our judiciary are so willing to defer to executive decisions on rather more occasions than they are willing to stand up for ordinary people whose lives are affected by authoritarian rule by statutory instrument.

      One day, perhaps, we may see a Minister arrested under a bench warrant for defying a court order but I doubt that short of a revolution, it will ever be in my lifetime.

  9. You can have all the Charters, Parliamentary Acts. Laws. Human Rights, Ect, If the
    system is corrupt and run by the Legal Mafia all you have is Secret Enslavement !

    Wake Up ! The UK has been hi-jacked in a creeping coup by the mafia

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