Monday, June 15, 2015
Magna Carta - did she die in vain?
Today is the 800th anniversary of the signing of Magna Carta by King John at Runnymede, though as one pedant has already pointed out on Twitter, the actual 800th anniversary is next Monday (owing to the change from Julian to Gregorian calendars in 1752).
Accordingly, we have already been treated to a high-minded speech by David Cameron standing on the banks of the River Thames in which he extolled the importance of the document as the basis of our Parliamentary democracy. Or at least he should have done, I sort of switched off after the first few sentences.
At least one politics site is a bit unhappy at Cameron embracing the Magna Carta. I think that they believe he is a modern day King John. They argue that whereas the great charter sought to limit executive power, Cameron has in fact done the opposite. Exhibit one is his intention to abolish the Human Rights Act and take us out of the European Convention on Human Rights.
Ian Dunt, who wrote the article argues that cuts to legal aid are limiting people's access to justice contrary to the intention of the Magna Carta, that changes to rules for judicial review are undermining the rule of law and that the way we treat immigrants means that we are flouting the rule that there should be no imprisionment without trial.
It is a worthy attempt to contemporise Magna Carta and relate it to some of the touchstone issues being looked at by this new Tory Government, however in doing so Mr. Dunt decontextualises Magna Carta.
Over on the Jack of Kent blog there is a useful attempt to put things back into context. He accepts that Magna Carta has huge symbolic significance but that its importance as a legal document is vastly over-inflated. he says that it was not called Magna Carta at the time, and it was annulled after a very short period.
He goes on to quote two recent lectures by the English senior judge and medieval historian, Jonathan Sumption. He says that Sumption points out that what we take as Magna Carta is not the creation of 1215 but of pundits and propagandists of early Stuart England, especially Sir Edward Coke, a lawyer and writer of genius.
The key passage in Magna Carta is of course this: “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right”.
Jack Of Kent though is sceptical:
Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”. it tells you nothing about what that law should be. And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t. It was – and remains – a platitude, a slogan.
And so, the advances in “liberal” protections for the individual in English legal history – the writs of habeas corpus or the rulings against unrestricted warrants – came in unrelated legal developments, none of which depended on Magna Carta.
In fact, for a supposedly fundamental document, there is little to see of its “fundamental” effect: few, if any, cases have ever turned on it. Although it is often invoked in passing, it lacks the live and real effect of an actual constitutional instrument. Compare this impotence with the entitlements in the US Bill of Rights, which make actual differences to US citizens every day.
I actually think that this interpretation is very ungenerous. Magna Carta was of course, a codification of the law as it stood at the time rather than a departure from the existing rule. However, its significance and that of the key passage referred to above is the way it checked the arbitrary use of power by the King and forced him to abide by the rule of law..
It may be right to say that this law was not defined, but that is not the point. The King had been curtailed in what he could do, whilst the Charter also contains important rights for Wales and Scotland as well. This codification of laws helped form the basis for the US constitution whilst a direct line can be drawn from the Magna Carta to the assertion of Parliamentary sovereignty after the English civil war.
All in all this is a significant day, even if the Prime Minister has missed the irony of his own participation in the celebrations given his own government's policies.
Accordingly, we have already been treated to a high-minded speech by David Cameron standing on the banks of the River Thames in which he extolled the importance of the document as the basis of our Parliamentary democracy. Or at least he should have done, I sort of switched off after the first few sentences.
At least one politics site is a bit unhappy at Cameron embracing the Magna Carta. I think that they believe he is a modern day King John. They argue that whereas the great charter sought to limit executive power, Cameron has in fact done the opposite. Exhibit one is his intention to abolish the Human Rights Act and take us out of the European Convention on Human Rights.
Ian Dunt, who wrote the article argues that cuts to legal aid are limiting people's access to justice contrary to the intention of the Magna Carta, that changes to rules for judicial review are undermining the rule of law and that the way we treat immigrants means that we are flouting the rule that there should be no imprisionment without trial.
It is a worthy attempt to contemporise Magna Carta and relate it to some of the touchstone issues being looked at by this new Tory Government, however in doing so Mr. Dunt decontextualises Magna Carta.
Over on the Jack of Kent blog there is a useful attempt to put things back into context. He accepts that Magna Carta has huge symbolic significance but that its importance as a legal document is vastly over-inflated. he says that it was not called Magna Carta at the time, and it was annulled after a very short period.
He goes on to quote two recent lectures by the English senior judge and medieval historian, Jonathan Sumption. He says that Sumption points out that what we take as Magna Carta is not the creation of 1215 but of pundits and propagandists of early Stuart England, especially Sir Edward Coke, a lawyer and writer of genius.
The key passage in Magna Carta is of course this: “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right”.
Jack Of Kent though is sceptical:
Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”. it tells you nothing about what that law should be. And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t. It was – and remains – a platitude, a slogan.
And so, the advances in “liberal” protections for the individual in English legal history – the writs of habeas corpus or the rulings against unrestricted warrants – came in unrelated legal developments, none of which depended on Magna Carta.
In fact, for a supposedly fundamental document, there is little to see of its “fundamental” effect: few, if any, cases have ever turned on it. Although it is often invoked in passing, it lacks the live and real effect of an actual constitutional instrument. Compare this impotence with the entitlements in the US Bill of Rights, which make actual differences to US citizens every day.
I actually think that this interpretation is very ungenerous. Magna Carta was of course, a codification of the law as it stood at the time rather than a departure from the existing rule. However, its significance and that of the key passage referred to above is the way it checked the arbitrary use of power by the King and forced him to abide by the rule of law..
It may be right to say that this law was not defined, but that is not the point. The King had been curtailed in what he could do, whilst the Charter also contains important rights for Wales and Scotland as well. This codification of laws helped form the basis for the US constitution whilst a direct line can be drawn from the Magna Carta to the assertion of Parliamentary sovereignty after the English civil war.
All in all this is a significant day, even if the Prime Minister has missed the irony of his own participation in the celebrations given his own government's policies.
