Whose Magna Carta is it anyway?
17 June 2014
Yesterday 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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