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November 17, 2016

Magna Carta’s American Adventure

Click here to read the full article
By Prof. A. E. Dick Howard. First appeared in North Carolina Law Review (Vol. 94, No. 5 June 2016)

I spent a good part of the summer of 2015 in England, lecturing on aspects of Magna Carta. It seemed that every town, village, or crossroads with any connection to Magna Carta was celebrating the Charter’s eight hundredth anniversary. It’s not surprising to hear about celebrations in the country that gave birth to Magna Carta. But the question I want to put before you tonight is: why should Americans care? After all, Magna Carta’s origins were a long time ago, in a very distant place, born of a struggle between King John and the barons. Why would an American remember Magna Carta?

When I was very small, one of the authors whose books I came to love was A. A. Milne. You Winnie the Pooh buffs will know about Milne. Perhaps you know Milne’s Now We Are Six. One of the poems in the collection is “King John’s Christmas.” It begins,

King John was not a good man –
He had his little ways.
And sometimes no one spoke to him
For days and days and days.

For a little kid, the idea of being shunned – that nobody will speak to you – is really terrible. How could you be so awful that people won’t even talk to you?

Click here to read the full article.

November 12, 2016

800th anniversary of Bristol Magna Carta

Jeff Lovell is Bristol’s first citizen: its Lord Mayor.[*1] On Saturday 12th November, the Lord Mayor and Lady Mayoress will be at Bristol’s St James’ Priory for the Bristol800 concert to mark that day’s 800th anniversary of the Bristol Magna Carta. Present, too, will be Mrs Josette Lebrat – French Honorary Consul for Bristol and the South West of England.[*2] The Bristol Magna Carta was the re-birth of the ‘Great Charter’. It was intended to coax England’s rebel barons to side with England’s Boy King, King Henry the Third, against his rival: the future King Louis the Seventh of France, whose forces, by then, controlled the eastern half of England.[*3] Mrs Josette Lebrat will be at the concert in her official capacity on this significant anniversary for England and France.

Magna Carta is seen, by many, as a major step in the history of human rights. Hence the view that the Universal Declaration of Human Rights of 1948 was a “Magna Carta for All Mankind”.[*4] All proceeds from the Bristol800 Magna Carta concert go to Freedom from Torture. This UK charity provides therapeutic and clinical services to survivors of torture who arrive in the UK, as well as striving to protect and promote their rights.

On Saturday 12th November, choral works from the time of the 1215 and 1216 Magna Cartas and a few pieces composed since which relate to the Magna Carta will be sung, beautifully, by the acclaimed Chandos Singers. Historical insights will be provided by UWE History professor Peter Fleming. The venue –the oldest building in Bristol– is linked to the 1216 events and is next to Bristol bus station.

The world famous Magna Carta –agreed to by King John in June 1215 at Runnymede (near Windsor)– was declared ‘null and void of all validity for ever’ by the then Pope, at King John’s request, soon after Runnymede.[See *3]

From that moment: Magna Carta was dead! What followed? —
* a French invasion, at the request of England’s rebel barons;
* the death of King John on (it is thought) 18th October 1216;[*5]
* the coronation of his son: the 9-year old King Henry III at what is now Gloucester Cathedral on 28th October 1216;[*6]
* Magna Carta was revised and reissued, in Bristol, on 12th November 1216.[*7]

Only one copy of the Bristol Magna Carta is known to survive.[*8]

The 12th November concert is part of Bristol800 and of the Bristol 800 Universities Showcase weekend. Bristol800 is a year-long cultural and heritage partnership to mark the 800th anniversary of Bristol’s Mayorality and of the Bristol Magna Carta.[*9] Another in a series of anniversaries marked by Bristol800 is the 40th anniversary of the first commercial flight by Concorde – a major Anglo-French project.[*10]

Malcolm Hill, conductor of the Chandos Singers, said today: “Choral works performed during 1200-1220 and a few pieces composed since which relate both to the original Magna Carta in 1215 under King John, the proclamation at St. Paul’s Cathedral of the future Louis VIII as King of England, and to the reissue in Bristol under the boy-king Henry III in 1216 will be sung.”[*11]

Professor Peter Fleming added: “As a historian of medieval Bristol it’s great to be involved with this very worthwhile effort. In between the excellent renditions I’ll be saying a little about these historic documents, what they meant to Bristol, and what they continue to mean to our contemporary world.”

The organisers offer free tickets for carers accompanying ticket buyers: get in touch to arrange this. Seating is unreserved and on chairs, pews and benches. Some have restricted views, so please arrive early to choose your seat. Doors open 2.30pm.

BOOKING INFORMATION, etc:
* Click here for further information
* Click here for tickets:

NOTES:
[*1]: Jeff Lovell is Bristol’s first citizen: its Lord Mayor. See: http://www.northsomersettimes.co.uk/news/war_veteran_96_given_french_service_medal_for_d_day_efforts_1_4758574

[*2]: Mrs Josette Lebrat, French Honorary Consul for Bristol & the South West of England. See: https://www.embassypages.com/missions/embassy4440/
and ‘North Somerset Times': “War veteran, 96, given French service medal for D-Day efforts”, 2nd November 2016: http://www.northsomersettimes.co.uk/news/war_veteran_96_given_french_service_medal_for_d_day_efforts_1_4758574

[*3]: “the future King Louis the Seventh of France, whose forces, by then, controlled the eastern half of England.” The Runnymede Magna Carta of June 1215 was “effectively dead” by late August 1215, when – at King John’s request – the then Pope issued a document (known as a papal bull) declaring Magna Carta ‘null and void of all validity for ever’. In September 1215, civil war broke out between King John and his barons. The King raised an army of mercenaries to fight his cause, while the barons renounced their allegiance to him, and invited Prince Louis (1187-1226), son of the King of France, to accept the English crown. Louis invaded England in 1216, and England was still at war when John died of dysentery on the night of 18th October 1216. Magna Carta gained new life in the early years of the reign of the next king, Henry III. Henry was just nine years old when he succeeded to the throne, and in November 1216 in Bristol a revised version of Magna Carta was issued in his name, in order to regain the support of the rebel barons. Another version of Magna Carta was granted in the following year, after the French army had been expelled from England. Adapted from British Library account: https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction

[*4]: “A Magna Carta for All Mankind”: https://www2.gwu.edu/~erpapers/maps/Europe1948final.html

[*5]: ‘Foul as it is, hell itself is made fouler by the presence of King John.’ On 18th October 2016, The National Archives (London) held a free talk on the life and reign of King John, who died 800 years earlier. Professor David Carpenter, Professor Stephen Church and Dr Marc Morris discussed the man, his life, his world and his reputation, with plenty of opportunities for questions from the audience. For more information, visit: http://blog.nationalarchives.gov.uk/blog/life-death-king-john/
Media enquiries to: [email protected] or 020 8392 5277

[*6]: The 9-year old King Henry III was crowned at Gloucester on 28th October 1216. The 800th anniversary was marked by ‘What happened at Henry III’s Coronation at Gloucester in 1216?’ – a talk on 28th October 2016 at Gloucester Cathedral. That talk was part of Gloucester Cathedral’s King Henry III events: http://www.gloucestercathedral.org.uk/whats-on/lectures/lectures-2911.php
Further enquiries to the Cathedral’s development officer, Laura Neale: T: 01452 874965; e: [email protected] .

[*7]: “On the death of King John in 1216, the minority government of his son, Henry III (r. 1216–72), executed a complete change of policy and issued a new version of Magna Carta. The aim was to tempt supporters of Prince Louis back to Henry’s side. Only one original of the 1216 charter survives, in the archives of Durham Cathedral. Shown here is a contemporary copy, which probably came into Louis’s possession and left England with him in 1217; hence its descent in the French royal archives. There is no evidence that Louis responded by granting a charter of his own. The new version of the charter was issued in Henry’s name at Bristol on 12 November 1216, having been sealed by Guala (1150-1227), the papal legate, and the regent, William Marshal, Earl of Pembroke (1147-1219). It omitted the security clause and other controversial features of the 1215 charter, but preserved its spirit and much of its letter.”: https://www.bl.uk/collection-items/magna-carta-1216

[*8]: The only known copy of the November 1216 Bristol Magna Carta is at Durham Cathedral. It contains 42 clauses (as compared to the 61 of the 1215 issue). Media enquiries to Ruth Robson, Head of Marketing & Events, Durham Cathedral. Tel: 0191 386 4266 See also: https://www.durhamcathedral.co.uk/magna-carta/cathedral-collections

[*9]: “Bristol800 is a year-long cultural and heritage partnership to mark the 800th anniversary of Bristol’s Mayorality and of the Bristol Magna Carta”. See: http://www.ideasfestival.co.uk/wp-content/uploads/2015/11/BFOI-Bristol-800-Cultural-Weekenders-Brochure-24pp-A5-WEB.pdf

[*10]: Another anniversary marked by Bristol800 is the 40th anniversary of Concorde’s first commercial flight: http://www.independent.co.uk/student/UWE/from-warplanes-to-concorde-how-music-is-telling-aviation-history-a7384521.html?amp

[*11]: “the proclamation at St. Paul’s Cathedral of the future Louis VIII as King of England”: See the St Paul’s Cathedral website (published: June 2015): https://www.stpauls.co.uk/news-press/latest-news/st-pauls-in-the-time-of-magna-carta-a-place-staunchly-opposed-to-king-john

October 17, 2016

Bristol 800 concert and events programme

The world famous Magna Carta was declared ‘null and void of all validity for ever’ by Pope Innocent III, at King John’s request. The Magna Carta was revised and reissued, in Bristol, on 12th November 1216. [*3] Only one copy of the Bristol Magna Carta is known to have survived. [*4]

The 800th anniversary of the Bristol Magna Carta will be marked at St James Priory in Bristol by the acclaimed Chandos Singers, UWE History professor Peter Fleming, and UK charity Freedom from Torture.

The venue – the oldest building in Bristol – is linked to the 1216 events and is next to Bristol bus station. Choral works from 1215 and 1216 and a few pieces composed since which relate to the Magna Carta will be sung.

The 12th November event is part of Bristol800 and of the Bristol 800 Universities Showcase weekend. All proceeds go to Freedom from Torture. This UK charity provides therapeutic and clinical services to survivors of torture who arrive in the UK, as well as striving to protect and promote their rights.

Malcolm Hill, conductor of the Chandos Singers, said today: “Choral works performed during 1200-1220 and a few pieces composed since which relate both to the original Magna Carta in 1215 under King John, the proclamation at St. Paul’s Cathedral of the future Louis VIII as King of England, and to the reissue in Bristol under the boy-king Henry III in 1216 will be sung.” [*5]

Professor Fleming added: “As a historian of medieval Bristol it’s great to be involved with this very worthwhile effort. In between the excellent renditions I’ll be saying a little about these historic documents, what they meant to Bristol, and what they continue to mean to our contemporary world

The organisers offer free tickets for carers accompanying ticket buyers: get in touch to arrange this. Seating is unreserved and on chairs, pews and benches. Some have restricted views, so please arrive early to choose your seat. Doors open 2.30pm.

BOOKING INFORMATION:

Click here to book.

Click here for further information.

NOTES:

1): ‘Foul as it is, hell itself is made fouler by the presence of King John.’ On Tuesday 18 October, 6pm–7.30pm, The National Archives (London) holds a free talk on the life and reign of King John, who died 800 years ago, in October 1216. Professor David Carpenter, Professor Stephen Church and Dr Marc Morris will discuss the man, his life, his world and his reputation, with plenty of opportunities for questions from the audience. For more details and to register, visit: nationalarchives.gov.uk/whatson.

Media enquiries only to: [email protected] or 020 8392 5277

2): The 9-year old King Henry III was crowned at Gloucester on 28 October 1216. The 800th anniversary is marked by ‘What happened at Henry III’s Coronation at Gloucester in 1216?’ – a talk on Friday 28 October, 7pm, at Gloucester Cathedral. That talk is part of Gloucester Cathedral’s King Henry III events – details from Gloucester Cathedral’s development officer, Laura Neale: T: 01452 874965; e: [email protected] Tickets for the 28 October talk: £12. Details: http://www.gloucestercathedral.org.uk/whats-on/lectures/lectures-2911.php

3): The Runnymede Magna Carta of June 1215 was “effectively dead” by late August 1215, when – at King John’s request – the then Pope issued a document (known as a papal bull) declaring Magna Carta ‘null and void of all validity for ever’. In September 1215, civil war broke out between King John and his barons. The King raised an army of mercenaries to fight his cause, while the barons renounced their allegiance to him, and invited Prince Louis (1187-1226), son of the King of France, to accept the English crown. Louis invaded England in 1216, and England was still at war when John died of dysentery on the night of 18 October 1216. Magna Carta gained new life in the early years of the reign of the next king, Henry III. Henry was just nine years old when he succeeded to the throne, and in November 1216 in Bristol a revised version of Magna Carta was issued in his name, in order to regain the support of the barons. Another version of Magna Carta was granted in the following year, after the French army had been expelled from England. Adapted from British Library account: https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction

4): The only known copy of the November 1216 Bristol Magna Carta is at Durham Cathedral. It contains 42 clauses (as compared to the 61 of the 1215 issue). Media enquiries to Ruth Robson, Head of Marketing & Events, Durham Cathedral. Tel: 0191 386 4266 See also: https://www.durhamcathedral.co.uk/magna-carta/cathedral-collections

5): St Paul’s Cathedral, London, on King Louis (published: June 2015): https://www.stpauls.co.uk/news-press/latest-news/st-pauls-in-the-time-of-magna-carta-a-place-staunchly-opposed-to-king-john

August 3, 2016

Emancipation and Magna Carta

Trinidad & Tobago Guardian, Sunday 31st July, 2016.
By Dr Hamid Ghany, University of the West Indies (Chair of Magna Carta 800th Caribbean Committee)

Click here to read the original article.

As several Commonwealth Caribbean countries celebrate Emancipation Day tomorrow, it is important to locate the significance of the emotions felt on such an occasion, especially in relation to the issue of human rights.

In the British West Indies there was a fundamental dichotomy between the values espoused by the 1215 Magna Carta that was subsequently revised several times, and the construction of slave society. Magna Carta has been celebrated as the foundation stone of many constitutional systems and human rights matrices in a variety of countries. However, in the West Indies, it is apparent that the principles of Magna Carta were not prominent in the history of the region until the preparation of independence constitutions.

The fundamental challenge lay in the failure of British settlers in the British West Indies to apply the principles of Magna Carta to all people in the colonies that were settled, conquered or ceded in the name of the British Crown. Primarily, the laws that were devised to facilitate slavery and the slave trade in the British West Indies regarded African slaves as property and not as people thereby contravening the core principles of Magna Carta.

The attitude of the British imperial courts towards slaves demonstrated the diversion from Magna Carta in the West Indies.

The best example of the racial superiority factor in the approach of British colonial administrators is captured in the following excerpt from the Report by Major E F L Wood who toured the West Indies and British Guiana in 1921-22:

The whole history of the African population of the West Indies inevitably drives them towards representative institutions fashioned after the British model. Transplanted by the slave trade or other circumstances to foreign soil, losing in the process their social system, language and traditions, and with the exception of some relics of obeah, whatever religion they may have had, they owe everything that they have now, and all that they are, to the British race that first enslaved them, and subsequently to its honour restored to them their freedom. Small wonder if they look for political growth to the only source and pattern that they know, and aspire to share in what has been the peculiarly British gift of representative institutions.”

[Report by the Hon Major E F L Wood, MP (Parliamentary Under Secretary of State for the Colonies) on his visit to the West Indies and British Guiana, December 1921-February 1922, Cmnd. 1679 (1922), p 6].

In framing colonial policy for the British West Indies, this quote from Major Wood (who later became Lord Halifax, the Second World War Foreign Secretary in Winston Churchill’s War Cabinet) highlights the mindset of racial superiority as the basis for engagement.

There were two legal cases that held great significance for the way in which slaves were to be treated during the pre-emancipation period.

The first was the matter of Somerset v Stewart [(1772) 98 ER 499] which established that slavery could not be practiced in England, but left open the issue of whether it could be practiced in other parts of the British Empire by virtue of the ambiguity of the judgment of Lord Mansfield in this regard.

The second was the matter of Gregson v Gilbert [(1783) 3 Doug KB 232] otherwise known as the Zong massacre. In this case an insurance claim involving a slave ship called the Zong was admitted. The insurance claim was for recovery of losses by the shipowners for a loss of cargo when 132 slaves were thrown overboard in order to retain supplies of food and water for those on board. This horrific act was upheld by Lord Mansfield and the owners were later compensated for the loss of the slaves.

The philosophy of regarding African slaves as property and not as people was a core imperial legal philosophy of the pre-emancipation era as highlighted by these two cases.

Even though Emancipation Day would come on August 1, 1834, it is really the advent of human rights in the independence constitutions from 1962 onwards that secure equality and justice for all in the society. Both the Canadian Bill of Rights 1960, in the case of T&T, and the European Convention on Human Rights 1950, in the cases of the other eleven independent countries of the Commonwealth Caribbean, can trace influences from Magna Carta.

In T&T, our constitutional foundation was best captured by Dr Eric Williams at a public meeting on July 19, 1955, in Woodford Square, Port-of-Spain, before he had entered electoral politics, when he said:

The Colonial Office does not need to examine its second hand colonial constitutions. It has a constitution at hand which it can apply immediately to Trinidad and Tobago. That is the British Constitution. Ladies and gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago.”

It is within this model that our human rights provisions were subsequently included for the independence Constitution.

December 21, 2015

ABA Magna Carta Memorial now Grade II Listed Monument

21st December 2015

The American Bar Association Magna Carta Memorial has been awarded a Grade II listing under the Planning (Listed Buildings and Conservation Areas) Act 1990.

The reason for its designation is for its ‘special architectural or historic interest.’

List entry Number 1430723, the Memorial overlooks Runnymede, where Magna Carta was sealed in 1215. On the 15th June 2015, the 800th anniversary of Magna Carta, the Memorial was the site of celebration and the focus of the world.

William Hubbard, President of the American Bar Association, Loretta Lynch, current US Attorney General, HRH Princess Anne, and the Rt Hon Philip Hammond, UK Foreign Secretary spoke at the Memorial on Magna Carta Day.

Pictures of this event can be viewed here.

Three reasons were provided for the Grade II designation:

The Magna Carta monument of 1957, by Edward Maufe, is listed at Grade II for the following principal reasons: * Historic interest: the memorial is the only specifically designed structure to commemorate the signing of the Magna Carta, which represents a seminal moment in the history of democracy for English, and later American, citizens; * Group value: a key part of the listed Runnymede group that includes Magna Carta House, Lutyens’ lodges and commemorative urns, Air Forces Memorial, and Kennedy Memorial; * Architectural interest: as an example of the work of the nationally celebrated architect Edward Maufe, displaying his signature style of modern classicism.”

The monument was constructed by Edward Maufe, and supported by the American Bar Association. It is the only official monument to Magna Carta in Britain today.

Click here for more information

November 24, 2015

Magna Carta and Comparative Bills of Rights in Europe

Magna Carta and Comparative Bills of Rights in Europe, Maya Hertig Randall, Professor of Constitutional Law at Geneva University, LL.M. (Cambridge)

It is an honour to be part of this celebration, commemorating the 800th anniversary of the Magna Carta, an iconic document which has become a symbol of liberty and the rule of law on both sided of the Atlantic. Within Europe, the text of the Magna Carta has come to express a common constitutional heritage. Textbooks and treaties on civil rights and liberties throughout Europe invariably refer to the Magna Carta as a foundational document of fundamental right, showing that the Charter’s reach goes well beyond its country of origin.

The aim of this short contribution is not to trace the actual – direct or indirect – influence of the Magna Carta on the constitutions and their Bill of Rights of the various Member States of the Council of Europe. Such endeavour would be a daunting task indeed. Ideas travel across space and time; they evolve, are reinterpreted and transformed in this process. We would first need to establish the original meaning of the Charter, i.e. what it meant in the specific context of its time. We would then need to retrace the long trajectory of the ideas expressed in the Charter, their journey over the Atlantic, and the Charter’s impact on the founding fathers of the United States Constitution. We would thereafter need to explore the Magna Carta’s reception in various parts of the European continent, partly via the influence of the US constitution. This would be a task for which a constitutional lawyer may not be well equipped.

The contemporary relevance of the Magna Carta is not only dependent on its direct or indirect imprint on modern constitutions. The Magna Carta hugely matters because of its symbolic value, and because its ideas still resonates with us today. I will adopt a contemporary reading of the Magna Carta, highlighting its resonance and the principles it has come to embody. This approach treats the Magna Carta like a living tree, and not as a document the meaning of which is fixed in time. Put differently, it rejects an originalist reading, privileging a dynamic interpretation. This is an approach many domestic Courts – and most prominently the European Court of Human Rights – adopt when they are called upon to construe the meaning of fundamental rights provisions.

The clause of the Magna Carta which without doubt has had the strongest resonance is almost too well known to be cited:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

The famous clause 39 has become the embodiment of two powerful and connected principles: Firstly, personal freedom, consisting mainly of, but not limited to, the right to liberty and security, and secondly, the rule of law and due process of law. Together, these principles form a bulwark against arbitrary rule. The limits of personal freedom can only be determined by law and not by the capricious will of the sovereign.

The idea of freedom under the law has been reasserted in the following Centuries, prominently in the Declaration of Rights of Man and Citizen of 1789, which is nowadays part of the French Constitution and upheld by the French Constitutional Council. Art. 7 protects specifically the right of liberty and security, holding that “[n]o person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law.” Other provisions, mainly Art. 4 and 5, protect personal freedom more generally, stating that the limits to liberty can only be determined by law, and that “nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”

Freedom under the law forms part of the common constitutional tradition reflected in Bills of Rights, in Europe and beyond. In addition to specific provisions on the right to liberty and security, constitutions require, either in specific or in general limitation clauses, that restrictions of fundamental rights need to be prescribed by law. We find this requirement also in the Charter of Fundamental Rights of the European Union, which can be viewed as codifiying common constitutional traditions of the EU Member States. According to Art. 52 para. 1 of the EU Charter, “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law.”

Beyond the protection of individual rights, the Magna Carta contains the seed of the more general principle of the rule of law, or its German or French counterpart, the ‘Rechtsstaat’ or the ‘Etat de droit’. This more general principle can be derived from the precept reflected in clause 39 of the of the Magna Carta that the King is not above the law but bound by law.

European constitutions underscore that the rule of law is a central element of a legitimate constitutional order. Virtually all European constitutions explicitly refer to rule of law principles. A prominent example is the German Basic Law, adopted in 1949, in the aftermath of Word War. But also more recent constitutions, in particularly those adopted against the backdrop of totalitarian or authoritarian past, invariably commit to the Rule of Law. To name just one example : The Constitution of Serbia holds in Art. 1 that the Republic of Serbia is a state “based on the Rule of Law”, and Art. 3 holds that “the rule of law is a fundamental prerequisite for the Constitution which is based on inalienable human rights.”

Apart from the Rule of Law, the Magna Carta is also an evocative document for us today, because it has come to embody the very idea of a modern Constitution: it represents, in Sandra Day O’Connor’s words, the “written embodiment of fundamental laws », « the more general notion of a written statement of fundamental law binding upon the sovereign state.”

The fundamental nature of the principles enshrined in the Magna Carta, and their written form, have earned the Magna Carta the attribute of the “world’s first written constitution”. This understanding of the Magna Carta resonates in the famous judgment Marbury v. Madison, describing the constitution as “superior, paramount law, unchangeable by ordinary means”, and implying that laws clashing with the constitution are null and void. As is well-known, Marbury v. Madison founded the Supreme Court’s power of judicial review. In Europe, constitutional review is a much more recent phenomenon. The thinking of Marbury v. Madison has been steadily gaining ground since World War II and has become the dominant paradigm of upholding the rights enshrined in domestic constitutions.

Interestingly, the authors of the Magna Carta also provided for supervisory arrangements aimed at controlling the King. Based on clause 61, a supervisory body representing the Barons had the power to oversee compliance with the Magna Carta and to take in extremis retalitatory measures against the faulty King. Although this mechanism was ineffective, it can be viewed – based on a contemporary reading of the Charter – as expressing the idea of separation of powers : ambition must be made to counteract ambition. Maybe it can even be viewed as an embryonic precursor of judicial review.

The Magna Carta has not only come to embody the concept of a written constitution, of which Bills of Rights are today an essential part. Its provisions also encapsulate ideas which have grown over time into fundamental rights enshrined both in Europe’s contemporary Bill of Rights.

To illustrate this point, let me refer again to the famous clause 39. Apart from the right to personal freedom, clause 39 – together with clause 40 – expresses the idea of procedural due process, fair trial and access to justice. Individual liberty can according to clause 39 only be curtailed through lawful judgments; moreover, precepts of a fair trial and access to justice have to be respected: In the wording of clause 40: “To no one will we sell, to no one deny or delay right or justice.” The idea that justice must be accessible also underpins clause 17, holding that “[c]ommon pleas shall not follow our court but shall be held in some fixed place”.

Clause 45 is complementary to fair trial guarantees and related to judicial independence. It lays down a requirement which has become common place and is mentioned in the Basic Principles on the Independence of the Judiciary, adopted in 1985 within the framework of the UN – the requirement that judges have appropriate training or qualifications in law. Clause 45 reads: “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”

Clauses 39 and 40, and the related clauses of the Magna Carta can be viewed as the ancestors of procedural safeguards against arbitrary detention, and the right to a fair trial, enshrined in Art. 5 and 6 ECHR. Corresponding provisions in domestic constitutions have become commonplace on the European continent, mainly through the direct impact of the European Convention.

Another contemporary right which can trace its lineage to Magna Carta is the right to just and proportionate punishment. In the Magna Carta, we find it expressed in clause 20 and 21. The relevant part of clause 20 reads as follows: “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.”

A contemporary expression of the right to just and proportionate punishment can be found in Art. 49 para. 3 of the EU Charter of Fundamental Rights, holding that the The EU Charter holds that “[t]he severity of penalties must not be disproportionate to the criminal offence”.

The Constitution of Cyprus contains a similar provision. In addition to these explicit guarantees, the right not to be subject to disproportionate punishment is implied in the prohibition of inhuman and degrading penalties. The Vinter judgment of the European Court of Human Rights ruling out incompressible life sentences is a recent link in this chain of development.

Another clause of the Magna Carta which still resonates with us today is clause Clause 42: “In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear (…)”.

Clause 43 also refers to free movement, reflecting economic rationales: “All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs.” Clause 43 evokes to contemporary readers economic liberties, enshrined in many European constitutions under different names (‘occupational freedom’ in Germany, ‘economic freedom’ in Switzerland, ‘liberté d’entreprendre’ » in France). For the EU-Member States, it evokes the four fundamental market freedoms.
Moreover, the Magna Carta contains clauses which regulate the taking of horses, carts, wood, issues of inheritance and guardianship, or the remarriage of widows. These clauses respond to concrete grievances against the King. Abstracted from their specific context, they aim at safeguarding interests protected nowadays by the fundamental rights to property, and the prohibition of forced marriage.

Contemporary Bills of Rights are worded in a more abstract and principled way than the Magna Carta, expressing atemporal and universal principles. Nevertheless, like the many detailed provisions of the Magna Carta, fundamental rights have emerged from history, from grievances against the concrete experience of injustice.

This is clearly expressed in the UDHR, referred to by Eleanor Roosevelt as “the international Magna Carta of all men everywhere.” According to its preamble, the UDHR has been declared, as a reaction to “barbarous acts which have outraged the conscience of mankind”.

Put differently, fundamental rights and freedoms are “Rights from Wrongs” (Alan Dershowitz). They are concrete answers to centuries’ old experience of injustice and human suffering which have shaped our understanding and the meaning of human dignity. The insight that human rights are deeply rooted in our history makes them fixed stars to navigate by at difficult times. The star of the Magna Carta has been shining, for instance, in the context of the “war against terror”: It has been invoked as a ‘fixed star’, reminding us to remain eternally vigilant when human rights come under pressure and are set aside for security concerns. In the United States, the Magna Carta was referred to in the major cases involving the indefinite detention of enemy combatants, Padilla v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush. In the Boumediene decision, Justice Anthony Kennedy, writing for the majority, referred to Article 39 of the Magna Carta. He held:

“Magna Carta decreed that no man would be imprisoned contrary to the law of the land…Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it…gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”

Kennedy’s understanding of Magna Carta is to view it as a document whose principles have grown over time. He traces the United States Constitution, and habeas corpus, back to the Magna Carta, establishing a link between the ancient guarantee of Art. 39 with 21 Century guarantees through historical progression.

In a similar vein, In the United Kingdom, Lord Bingham’s opinion referred to the Magna Carta in the famous judgment A. and others v. The Secretary of Home Department, handed down on 16 December 2004. This judgment concerned indefinite detention of foreign nationals suspected of terrorism under the Anti-terrorism, Crime and Security Act of 2001.

Lord Bingham held:

“In urging the fundamental importance of the right to personal freedom (…), the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom.”

In referring to Magna Carta and linking it to the subsequent developments in the 17th Century and contemporary law, Lord Bingham emphasises continuity. The long liberal tradition and the constitutional values traced back to Magna Carta embody stability at times of crisis; they offer reassurance at times of turmoil. They provide the normative, lasting framework which cannot be set aside by current majorities.

The legacy of Magna Carta is not confined to the United Kingdom. Lord Bingham implies this by referring to Art. 5 of the European Convention, which – like the Magna Carta – recognizes the prime importance of personal freedom. Through the of liberty and security, and the right to a fair trial, enshrined in the European Convention, the spirit of Magna Carta has been spread in the 47 Member States of the Council of Europe.

In my home country, Switzerland, we celebrated last year the 40th Anniversary of Switzerland’s membership of the Convention. Looking back four decades, legal scholars concluded that Art. 5 and 6 of the Convention are the provisions which have left the most profound imprint on the Swiss legal and constitutional order. It was thanks to the ECHR, for instance, that Switzerland revised its legal framework to put an end to the practise of so-called administrative detention: Between the 1930s and the 1980s, thousands of people were detained on vague grounds and without access to a court.

Administrative authorities locked up people for years without a trial, on the grounds including being “work-shy” or “immoral”. The Swiss Government apologised to the victims of administrative detention in 2010 and acknowledged the injustice suffered. The process of rehabilitation and dealing with this dark chapter of our history is still ongoing.

Unfortunately, these debates do not occur in a context celebrating the spirit of Magna Carta as part of our common constitutional heritage. They occur in a context where it has become commonplace to invoke another foundational document, the Swiss Federal Charter of 1291, which is considered the first building block of what was to become the Swiss Federal State. Designed to free Switzerland from Habsburg rule, the Swiss Federal Charter of 1291 expresses opposition to “foreign judges”, e.g. judges imposed by the Habsburg rulers. Fears of foreign rule are mobilised today to reject the European Convention – inaptly labelled as foreign law – and the judges of the European Court of Human Rights – decried as “foreign judges”.

This example shows that symbols and myths matter. Human rights and constitutionalism need powerful symbols like the Magna as an expression of a long lasting and transnational tradition.The importance of anchoring human rights in history and tracing them back to a foundational document has also been recognised outside Europe. On the African continent, a document dating back to the same period as the Magna Carta receives increasing attention. The so-called Manden-Charter was declared by the founder of the Mandingo Empire and the assembly of his wise men in a region located today in Mali. The content of the Charter has been orally handed down from generation to generation. It has been annually celebrated at commemorative ceremonies to keep its content alive. In 2009, it was inscribed by UNESCO on the Representative List of the Intangible Cultural Heritage of Humanity. In the same year, the Magna Carta was inscribed on UNESCO’s Memory of the World Register.

Like the Magna Carta, the Manden Charter can be read as expressing fundamental values underlying human rights and constitutionalism. In simple language, the Manden Charter underscores freedom and equality, with a universalist aspiration. Based on a contemporary reading, we can find the seeds of essential human rights, including the right to life, the prohibition of slavery, the right to food, the right to bodily integrity and freedom of expression. The Manden Charter reads:

1.The hunters declare:
Every human life is a life.
It is true that a life comes into existence before another life
But no life is more ‘ancient’, more respectable than any other
In the same way no one life is superior to any other

2. The hunters declare:
As each life is a life,
Any wrong done unto a life requires reparation.
Consequently,
No one should gratuitously attack his neighbour
No one should wrong his neighbour
No one should torment his fellow man

(…)

5. The hunters declare:
Hunger is not a good thing
There is nothing worse than this on this earth
As long as we hold the quiver and the bow
Hunger will no longer kill anyone in the Manden
If by chance hunger were to arrive,
War will no longer destroy any village for the acquiring of slaves
That is to say that no one will from now on place the bit in the mouth of his fellow man
In order to sell him.
Furthermore no one will be beaten
And all the more so put to death because he is the son of a slave

6. The hunters declare
The essence of slavery is today extinguished
‘from one wall to the other’ from one border to the other of the Manden
Raids are banned from this day onwards in the Manden
The torments born of these horrors have ended from this day onwards in the Manden
What an ordeal this torment is!
Especially when the oppressed has no recourse
The slave does not benefit from any consideration
Anywhere in the world.

7. People from the old days tell us:
‘Man as an individual
Made of flesh and bone
Of marrow and nerves
Of skin covered in hair
Eats food and drink
But his ‘soul’, his spirit lives on three things:
He must see what he wishes to see
He must say what he wishes to say
And do what he wishes to do
If one of these things were to miss from the human soul
It would suffer and would surely become sick
In consequence the hunters declare:
Each person from now on is free to dispose of his own person
Each person is free to act in the way he wishes
Each person disposes of the fruit of his labour from now on
This is the oath of the Manden
For the ears of the whole world.

It is up to us to ensure that the Manden Charter and the Magna Carta will continue to resonate on their respective continents and beyond – for the ears of the whole world.

November 5, 2015

Attorney General Lynch Delivers Remarks at Magna Carta Commemoration Ceremony

15 June 2015 – Magna Carta Day.
United States Attorney General Loretta Lynch at the American Bar Association Memorial, Runnymede.
Click here to read this speech as it appears on the Justice Department’s website.

“Thank you, Secretary [Philip] Hammond, for that kind introduction. Your Excellencies, distinguished colleagues, honored guests – it is a pleasure to be here this morning, and a great privilege to join you all at this important commemoration.

Eight hundred years ago, on the grounds of Runnymede, King John sealed a piece of parchment – a Great Charter – that extended basic rights to individuals subject to his reign. That Magna Carta was neither expansive nor long-lived – its rules applied to only a small group of noblemen, and it was first annulled just 10 weeks after being sealed. But its adoption served as a signpost on a long and difficult march, and those who forged its compromise stood as early travelers on the road to justice. While the hands that wrote the Magna Carta have long been stilled, the principles they carved out of the struggles of their day – of the struggles of the human condition – live on.

Seven and a half centuries after that historic day, in 1957, a crowd of 5,000 people walked in storied footsteps to dedicate this memorial and to recognize its significance. Among them was Earl Warren, the Chief Justice of America’s Supreme Court and one of our nation’s greatest jurists, who noted in an opinion a year later that principles traced back to Magna Carta represented a concept that is “nothing less than the dignity of man.”

For Chief Justice Warren, and for the many American lawyers and jurists who gathered by his side, this monument had special meaning, because Magna Carta had come to symbolize more than a simple agreement between noblemen and their king. This social contract between a monarch and his people codified, however imperfectly, notions that would one day stand at the heart of our own system of justice: the idea that no power is unconditional, and no rule is absolute; that we are not subjugated by an infallible authority, but share authority with our fellow citizens. That all are protected by the law, just as all must answer to the law. These fundamental, age-old principles have given hope to those who face oppression. They have given a voice to those yearning for the redress of wrongs. And they have served as the bedrock of free societies around the globe, inspiring countless women and men seeking to weave their promise into reality.

For those who drafted the U.S. Constitution, the significance of Magna Carta was clear. Its influence helped shape a political system that enshrines separation of powers, due process and the rule of law; a legal system that recognizes and honors the dignity of all people; and a commitment to ongoing efforts to realize these ideals in every interaction between our citizens and our institutions.

Even today, America continues to pursue these goals. We are engaged in initiatives to promote trust and understanding between law enforcement officers and the communities we serve. We are working with partners in the United States and around the world to pursue those who would deny human dignity, whether through trafficking or corruption, violence or terrorism. And we are carrying out a historic reorientation of our criminal justice practices to end an overreliance on incarceration. At every turn, we are driven by that same devotion to the rule of law whose seeds took root in this field so long ago.

Of course, our journey has not been easy, and it is far from over. Just as men and women of great conscience and strong will have, over eight centuries, worked to advance the cause that animated their forebears – in nations around the world – we too must advance and extend the promise that lies at the heart of our global community. We too must deliver on the spirit of Magna Carta. And we too must carry forward our work to new fields of equality, opportunity and justice.

On the day that this monument was dedicated in 1957, one of the former presidents of the American Bar Association called his journey to Runnymede a “devout pilgrimage to the ancestral home, to the well springs of our profession, to the fountainhead of our faith.” Today, we not only pay tribute to the source of our legal doctrine – we reaffirm our devotion to its values and recommit ourselves to the service of its most treasured ideals. As we go forward, I am proud, I am honored and I am humbled to stand shoulder-to-shoulder with all of you in our shared pursuit of a more just world.

Thank you all, once again, for the opportunity to take part in this commemoration. Thank you for your dedication to the ennobling ideals we are here to celebrate. I look forward to all that our nations will achieve together in the spirit of their promise in the years ahead.”

October 26, 2015

Magna Carta: Did she die in vain?

Magna Carta: Did she die in vain?
Baroness Hale, Deputy President of the Supreme Court, Gray’s Inn, 19 October 2015.

Click here to read the article as it originally appeared on the UK Supreme Court website.
Click here to download this speech as a PDF.

My title comes from a famous clip from ‘Hancock’s Half Hour’, first broadcast on 16 October 1959, where Tony Hancock mimics the role of Henry Fonda in ‘Twelve Angry Men’, trying to persuade a jury to his point of view. ‘Does Magna Carta mean nothing to you?’, he asks. ‘Did she die in vain?’ But he seems to have had just as many misconceptions about Magna Carta as the authors of 1066 and All That, and probably most of the rest of us, at least until we began to research it for the purpose of this 800th anniversary. For he went on: ‘that brave Hungarian peasant girl who forced King John to sign the pledge at Runnymede and close the boozers at half past ten’. If that were indeed what the King had agreed to, she would certainly have died in vain, now that the boozers can stay open much later but many are closing because alcohol is so cheaply available in retail outlets that people do not feel the need to go out to drink.

This lecture series has certainly helped us to understand more about what Magna Carta really meant. Lord Judge opened the series with a rattling good yarn about how it came about, how it was annulled, how it was reissued by King John’s successor, and several times later, how it survived and was revived in later centuries on both sides of the Atlantic. Lord Neuberger compared it to the near- contemporary idea of the Holy Grail, because it later achieved similar mythical status. Sir John Baker will be exploring the Templar connection between 1215 and 1628. What I want to do is to explore its contemporary relevance. Judicial decorum dictates that I should do so without entering into party political controversy. But perhaps I can approach that delicate task through three other anniversaries which are celebrated this year.

Although some historians tend to be dismissive of the importance of Magna Carta, we lawyers can trace at least three great ideas back to the original, the Magna Carta of 1215. The first and greatest idea stems from chapters 39 and 40 of the original Charter, combined as chapter 29 in the 1216 and all later versions. It seems appropriate to quote from the 1297 Charter,4 in the wording which still appears on the statute book today:

‘No free man shall be taken or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will we not pass upon him, nor condemn him, but by the 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 right or justice.’

As Lord Bingham has said, those words still ‘have the power to make the blood race’. They embody the individual’s right to life, liberty and property, not to be arbitrarily infringed by the rulers, but only in accordance with the law.

The second great idea came from chapter 12:

‘No scutage or aid is to be imposed in Our Kingdom except by the Common Counsel of Our Kingdom unless for the ransoming of Our person and knighting of Our first-born son and for marrying once Our first-born daughter and for these only a reasonable aid is to be taken.’

This was followed up by chapter 14, another of my favourites:

‘And in order to have the Common Counsel of the kingdom for the levying of an aid . . . or for the levying of scutage We are to cause the Archbishops Bishops Abbots Earls and Greater Barons to be summoned individually by Our letters and moreover We are to have a general summons made through Our Sheriffs and Bailiffs of all who hold in chief of Us for a fixed day at least forty days thence and at a fixed place . . .’

My own blood raced shortly after the last Parliament was dissolved, when I received just such a summons, giving me exactly 40 days’ notice of ‘a certain Parliament to be holden at Our City of Westminster’.

Sadly, chapters 12 and 14 did not survive into the 1216 and later reissues. They were not denied, but being deemed ‘important but doubtful’, they were ‘deferred until we have fuller counsel, when we will, most fully in these as well as other matters that have to be amended, do what is for the common good and peace and estate of ourselves and our kingdom’. They never reappeared.

The third great idea, which permeates the whole Charter, is that the King and his officials are as much subject to the laws of the land as are his subjects. The rule of law is not one-way traffic: not only do the governed have to obey the law, but so do the governors. This was reinforced by my own favourite chapter in the 1215 Charter, chapter 42, also sadly omitted from the later reissues:

‘We will not appoint Justices Constables Sheriffs or Bailiffs except from such as know the law of the Kingdom and are willing to keep it well.’

The closing words of what is now chapter 29 also embody the individual’s right to access to justice, before an incorruptible decision-maker who will judge according to law and not by the size of the bribe, which is the first requirement of any ‘impartial tribunal’.

Further, by chapter 60 of the original Charter:
‘Moreover all the aforesaid customs and liberties which We have granted to be maintained in Our kingdom as far as We are concerned with regard to Our own men all the men of Our Kingdom both Clergy and Laity are also to observe so far as they are concerned with them with regard to their own men.’

The promises made by the king to the barons were to be cascaded down through the feudal ranks. These are the three great pillars of modern constitutionalism – the liberties of the individual, the consent of the people to taxation and other burdens, and the rule of law – but they all beg the question: what is the law and who makes it? The answer was certainly not clear in 1215 and took many centuries to establish. But where stand those three great ideas today?

As to the first, I do not propose to discuss where we are with the substance of each of the rights renumerated in what became chapter 29, rather to ask where we are with the idea of such rights. And where better to look than another important anniversary which we celebrate this year, the 250th anniversary of the great case of Entick v Carrington? Contrary to popular belief, this was not a case about general warrants, but it established some important principles which are with us to this day. And as are we today, it was concerned with the delicate balance between the needs of effective government and the freedom of individuals to oppose such government. Oliver Cromwell had little doubt about which should prevail, allegedly saying that “your magna farta cannot control actions taken for the safety of the Commonwealth”. He was not alone. The power of the Secretaries of State, the King’s principal ministers, to issue warrants without any judicial authority to apprehend, detain and question people suspected of treason or even seditious libel was recognised in the case law of the King’s Bench.

The chain of events which culminated in Entick v Carrington began with a series of cases prompted by issue No 45 of The North Briton, a weekly news sheet which was highly critical of the King and his government. The anonymous author, John Wilkes MP, countered the plea in the King’s speech to Parliament for ‘that spirit of concord, and that obedience to the laws, which is essential to good order’, with the retort that the ‘spirit of concord’ was not to be expected of people who were being made subject to arbitrary searches and seizures, rather the ‘spirit of liberty’ should rise up in proportion to the grievance they felt – ‘freedom is the English subject’s Prerogative’.

Lord Halifax, Secretary of State, issued a general warrant, authorising the King’s Messengers to search for the unnamed authors, printers and publishers of The North Briton and to seize them and their papers. Wilkes and a number of printers and apprentices were rounded up under the warrant, eventually achieved their release and brought actions for false imprisonment and trespass. Wilkes, of course, was a prominent politician but the others were ordinary folk who had never brought such actions before. The juries found for the plaintiffs and awarded them large sums in damages. In none of these cases was the issue of the legality of such warrants clearly raised and decided, although both Chief Justice Pratt, of the Court of Common Pleas, and Lord Mansfield, Chief Justice of the Court of King’s Bench, expressed the view that they were not.

Indeed, Pratt CJ, in declining to interfere with the jury’s awards, observed that the jury had been struck by the Secretary of State ‘exercising arbitrary power, violating Magna Carta, and attempting to destroy the liberty of the kingdom’. The result was that it became unsafe to rely on general warrants and no more were issued.

Matters did come to head with Entick v Carrington. Halifax had issued a specific warrant, authorising Carrington and three other King’s messengers to search for the plaintiff, to seize and apprehend him, and bring him together with his books and papers, before the Secretary of State to be examined concerning his authorship of The Monitor, another weekly news-sheet, which was said to contain ‘gross and scandalous reflections and invectives upon His Majesty’s government and upon both Houses of Parliament’. The jury found that the messengers had broken and entered the plaintiff’s house, had stayed there for four hours, all the time disturbing him in his possession thereof, had searched several rooms, and in one bureau or writing desk, and several drawers, had read over and examined several of his papers, and seized and taken away some of his books and papers. They had also seized and taken away the plaintiff, who had then been released on bail, and was released from his recognisances a few months later. This was all part of the government strategy. They did not generally plan to prosecute for sedition, merely to harass and disrupt publication. Cleverly, Entick’s claim was not for false imprisonment, but for trespass to land and goods. The jury returned a special verdict, setting out the facts and asking whether the search and seizure in pursuance of the warrant were lawful; if not, they awarded £300 in damages. This time, the issue of the legality could not be avoided. Lord Camden, as Pratt CJ had become, presiding over the full Court of Common Pleas, was determined to decide it. The court found for the plaintiff.

As to the claim that such warrants had been in use, at least since the Glorious Revolution, ‘[T]he usage of these warrants since the Revolution, if it began then, is too modern to be law; the common law did not begin with the Revolution; the ancient constitution which had been almost overthrown and destroyed was then repaired and revived; the Revolution added a new buttress to the ancient venerable edifice.’ As to the lack of challenge hitherto: ‘It must have been the guilt or poverty of those upon whom such warrants have been executed, that deterred or hindered them from contending against the power of a Secretary of State and the Solicitor of the Treasury, or such warrants could never have passed for lawful till this time.’

The court had to accept that there were binding precedents recognising the power of the Secretary of State to issue warrants of arrest and committal, not only for high treason, but also for seditious libel. Departing from them would be more damaging to the law than following them, even though the court disapproved of them as contrary to history. But it refused to go further and allow for searches and seizures. The evidence given in all the earlier cases which Pratt CJ had tried had shown how these could be used in an arbitrary and speculative manner:

‘If this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred that no man can set his foot upon his neighbour’s close without his leave; . . . if there was [such a law] it would destroy all the comforts of society; for papers are often the dearest property a man can have.’

Once again, the appeal is to history, to the venerable edifice of the common law. Not only that, although the action was for interference with property, the real gravamen was seen as the interference with privacy. This is a clear foretaste, not only of article 4 of the American Bill of Rights, but also of the ‘right to respect for his private and family life, his home and his correspondence’, now protected by article 8 of the European Convention. The court also held that where torts had been committed, there was no defence of state necessity. There could be limits placed on liberty, for it must not become licentiousness, but if Parliament wanted to permit the seizure of seditious libels before they were published, it would have to legislate to do so. Furthermore, if Parliament wanted to authorise state officials to commit torts, it would have to do so in clear terms. This too is a clear forerunner of what we now call the principle of legality – that if Parliament wishes to legislate to interfere with fundamental rights, it must make itself crystal clear, so that Parliamentarians understand what they are voting for and are prepared to take the political risk in doing so.

An example is the very first case to be heard in the Supreme Court of the United Kingdom, Ahmed v Her Majesty’s Treasury,16 where we held that the very generally worded power in the United Nations Act 1946, to make Orders in Council in order to comply with our obligations under the United Nations Charter, did not entitle the government to over-ride fundamental rights and thus to make provision for freezing the assets of suspected terrorists without due process of law.

Entick v Carrington, as it seems to me, provides the link between the first great idea in Magna Carta and the present day. There is the appeal to the ‘ancient constitution’, the common law which would be found in the ‘books’ if it existed. There is the recognition that governmental power must not only be exercised in accordance with the law, but that the object of the law is to avoid the arbitrary and capricious use of power, and that there must be proper judicial safeguards for that purpose. All of these principles are with us to this day. They are enshrined in the European Convention on Human Rights and explain why so many of its guarantees are as much concerned with process as they are with outcomes.17 But we should not forget that these principles are also enshrined in the common law.

That brings me to the second great idea which we can trace back to Magna Carta. In what became chapter 29 the King promised not to violate the rights of free men except by the lawful judgment of his peers or the law of the land. But what was the law of the land? At that stage, it could only have been ancient custom and practice, which developed into the common law, and perhaps the decrees of the King. It is interesting to compare the two great medieval treatises on The Laws and Customs of England. Glanvill, writing in about 1190, before Magna Carta, included the statement that ‘what please the Prince has force of law’; but Bracton, writing in about 1230, left this out, saying that ‘whatever has been rightly decided and approved with counsel and consent of the magnates and general agreement of the community, with the authority of the king or prince first added hereto, has the force of law’. As he explained, ‘the King ought not to be subject to man, but subject to God and the Law’.

In the original Magna Carta, the King had also promised not to levy taxes without consent, save in a very limited number of customary circumstances. The body which was there contemplated as giving that consent was the Great Council of the realm, summoned in accordance with Chapter 14, a clear forerunner of today’s House of Lords. The earliest use of the word ‘Parliament’ to refer to the Great Council was in 1236. But another anniversary which we are celebrating this year is the 750th anniversary of Simon de Montfort’s second Parliament in 1265.

Parliament is holding a Festival of Freedoms to commemorate what is often thought of as the first real Parliament. The practice of summoning two ‘knights of the shires’ from each county in England had already begun. De Montfort added to this by summoning two burgesses from the boroughs. This became the invariable practice from 1327. Thus the House of Commons took the shape which it retained until the great Reform Act of 1832 took the first faltering steps towards universal suffrage, a process which was only completed in 1928, when we became a real democracy.

No doubt many Kings would have done without Parliament if they could. But the reality was that they needed Parliament’s consent if they were to be able to raise the taxes they needed to wage their wars. Not only that, by the mid 15th century, Sir John Fortescue, Chief Justice of the King’s Bench, in his treatise In Praise of the Laws of England, could say that ‘The King of England cannot alter nor change the laws of his realm at his pleasure. . . . he can neither change Lawes without the consent of his subjects, nor yet charge them with strange impositions against their wils’.

Of course, it took the upheavals of the 17th century, culminating in the Glorious Revolution of 1688, for it to be finally established that ‘levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament . . . is illegal’. Just as it takes clear words to empower the executive to interfere with fundamental rights, it takes clear words to empower the executive to levy charges. As every Law student knows, a power to regulate the sale of milk by issuing licences to buy it does not include a power to charge the purchaser 2d a gallon for the privilege.

Indeed, levying taxes and authorising the government to spend the proceeds is the one area of control of the economy over which Parliament does have some oversight. As Tony Prosser has shown, there are many other ways in which the economy is regulated these days, through the money supply, interest rates, various regulatory bodies, government procurement, and so on, over which Parliament has little or no control.20 Indeed, it may be that in today’s world, Parliamentary control of taxation and expenditure is less than wholly effective. But at least the principle first established in Magna Carta is maintained.

The Glorious Revolution also finally established that the King could not suspend or dispense with the law, and that only the King in Parliament could make new laws. That does, of course, mean that Parliament can take away our rights, or limit our freedoms, as the court acknowledged in Entick v Carrington. A striking example is the Security Service Act 1996, which gave the Security Service the new function of supporting the police in the prevention and detection of crime.

The Secretary of State was thus empowered to grant warrants, on the application of the Security Service, authorising them to enter private property, to interfere with it, and to bug it, in pursuit of this new function, all without judicial control. Hence the Security Service, acting in a policing role, has greater powers than the police do. This was in the days when Law Lords were Members of the House of Lords and entitled to take part in its Parliamentary business. Lord Browne Wilkinson was scathing:

‘What has never happened in police matters hitherto, since Entick v Carrington, is proposed in this Bill almost by accident; that is to say, an executive warrant enabling entry into English property; the burgling and bugging of it, under executive warrant, which is the very thing which has been fought by the law and all interested in liberty, for many hundreds of years.’

That is why, in most other countries in the world, there is a superior law, a Constitution or a Bill or Charter of Rights, which limits the powers of the legislature to pass laws which infringe such fundamental rights. Indeed, at the Commonwealth Magistrates and Judges conference recently, after I had explained that the Human Rights Act did not allow the courts to strike down Acts of Parliament which were incompatible with fundamental rights, a delegate clearly could not understand how Parliament could be permitted to pass an Act which was unconstitutional. But that has always been the position and I doubt very much whether most of us, brought up on the doctrine that ‘Parliament can make or unmake any law’, would want it any different.

However, we are beginning to recognise that not all Acts of Parliament are equal. Some of them may have a special constitutional status, which means that they cannot be impliedly repealed or amended by a later Act of Parliament. Once again, clear words would be needed to bring about such a constitutional change. Thus, in the ‘Metric Martyrs’ case, section 1 of the Weights and Measures Act 1985, an ordinary Act of Parliament, which permitted the continued use of imperial weights and measures, could not be taken to have impliedly repealed section 2(2) of the European Communities Act 1972, which recognised the supremacy of community law by empowering the use of subordinate legislation to comply with a European Directive requiring the primary use of metric measures.23 Among the ‘constitutional’ statutes listed was Magna Carta. On the other hand, the European Communities Act could not be taken to have authorised the courts to disobey article 9 of the Bill of Rights, that ‘freedom of speech and debate or proceedings in Parliament ought not to be impeached or called in question in any court or place out of Parliament’, so as to permit the court to investigate whether the Parliamentary scrutiny to be given to the bills authorising HS2 was sufficient to comply with the Environmental Impact Directive. In both of those cases, Magna Carta was, of course, listed among the examples of such constitutional statutes. The reverse, however, is not so far the case: there is no such thing as an unconstitutional statute.

The sovereignty of Parliament should, of course, place a heavy burden on Parliament to legislate with great care when fundamental rights are at stake. In this country, we can place some reliance on what Dominic Grieve has called ‘an entirely distinctive national narrative, embodying the Common Law; its confirmation through Magna Carta and its numerous reissues in the Middle Ages, the outcome of the conflict of authority between King and Parliament in the 17th century, in the Petition of Right, the abolition of the Star Chamber and the prohibition of torture; habeas corpus and the Bill of Rights of 1689, Lord Mansfield’s ruling on slavery in Somerset’s case and the Commentaries of William Blackstone.’

He goes on to suggest that ‘This national narrative has been so powerful that it has acted as an almost mythic restraint on successive British governments trying to curb freedoms when tempted to do so by threats to public order or national security . . . ’ This brings me to the third great idea which we can trace back before Magna Carta, the idea which we now call the Rule of Law. In fact, as Lord Bingham has shown, that embraces several ideas. But its essence lies in two principles. The first is that everyone is subject to the law, the governors as well as the governed. Then, the King and his officers had to act within the limits of what the law allowed. Now, the government and all other public bodies have to act within the limits of what the law allows. It is the job of the higher courts to ensure that they do. For most of the time, this means that the court is acting as the servant of Parliament. Most public bodies, being creatures of statute, derive their powers from Acts of Parliament or subordinate legislation. The role of the court is, not to exercise those powers for them, but to ensure that they are exercised in accordance with the law, not outside the limits of what their powers allow, in a fair and proper manner and not without reason. Sometimes, of course, the executive’s power derives from other sources, most notably the royal prerogative. But since Magna Carta there have been limits to the royal prerogative and it is now the role of the higher courts to ensure that government stays within those limits.

In this connection, I cannot resist mentioning the case of the Chagos islanders, because it is a case in which Magna Carta itself might have made a difference. When, in the 1960s, the British decided to lease Diego Garcia, the largest island in the Chagos archipelago, to the United States as a military base, it was also decided to remove all the islanders. This was done with a ‘callous disregard’ for the islanders’ interests. A new colony was created and its Commissioner given power to make laws for the ‘peace, order and good government’ of the colony. This was done under the royal prerogative to legislate for the colonies by Order in Council without Parliamentary approval. The Commissioner used his power to ban anyone from entering or remaining on the islands without permission. Years later, in 2001, Mr Bancoult successfully challenged the Commissioner’s Order as outside his legislative powers. At first, the government accepted this.

But in 2004, for reasons that are still obscure and controversial, they changed their minds and decided to reinstate the ban. This time they did it, not by giving legislative power to the Commissioner, but by enacting a new Constitution by Order in Council which itself prohibited entry except in accordance with a new Immigration Order. Mr Bancoult brought a second set of proceedings to quash the new Orders. He succeeded in the High Court and Court of Appeal, but failed in the House of Lords, by a majority of three to two.

Among the many arguments deployed on behalf of the islanders was one based on chapter 29 of Magna Carta: ‘No freeman shall be . . . exiled . . . but by the lawful judgment of his peers or by the law of the land’. It was accepted that Parliament might pass a law exiling a person from his homeland, but it was argued that an Order in Council in the exercise of the royal prerogative could not do so. Three of the Law Lords disposed of this argument by holding that the Orders were ‘the law of the land’ for the purpose of chapter 29. Two of the Law Lords held that there had never been a prerogative power to exile a population from its homeland. Magna Carta, and the later development of its principles by Blackstone and Lord Mansfield, lay at the heart of their reasoning.

But there is another aspect to the rule of law, which can also be derived from Magna Carta’s most famous guarantee: ‘we will sell to no man, we will not deny or defer to any man right or justice’. In modern terms, everyone has the right to access to justice: access to justice to defend themselves against the accusation that they have committed a criminal offence or should be subjected to some other form of penalty; access to justice to defend themselves against a civil claim; access to justice to assert a civil claim or to vindicate a right. It is a core function of the modern state to provide such access. Indeed, it has been argued that access to justice is even more important than access to other public services:

‘Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc, so it should protect them when legal difficulties arise. Indeed the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law.’

Those words were written in the context of access to lawyers but access to justice is even more fundamental than that. In a speech to the Commonwealth Magistrates and Judges’ Association, the Lord Chief Justice has recently commented that government and Parliament may not fully understand how important access to justice is to the maintenance of the rule of law. It is therefore the role of leadership judges to engage with them both, and with the public, to try and explain. So here is my simple attempt to do so.

The importance of affording a fair trial to persons accused of crime is not always obvious. All too often, our trial processes seem to the great British public to result in the acquittal of the guilty. We do, of course, have an obligation to make such processes fair to the alleged victims as well as to the alleged perpetrators. But, as it seems to me, a large part of the importance of a fair criminal process is to reassure the law-abiding: if we obey the law, we shall not be punished. If there is a risk of arbitrary and unjust punishment, what incentive is there to obey the law? In this connection, therefore, it is important to scrutinise any incentive to persons accused of crime to admit their guilt to police officers, or to plead guilty in court, in order to ensure that they do not place improper or unfair pressure on the innocent. An example is the recently introduced criminal court charge, levied on those who are convicted after having pleaded not guilty. I make no comment on whether this is, or is not, improper or unfair. My point is only that such pressures to plead guilty have always been rightly treated with suspicion in our common law world.

The importance of ensuring that people who have civil claims can also have access to justice to enforce or vindicate them is also not always obvious. Sometimes we in the justice system have only ourselves to blame. In my own world of family law, we have been so keen to encourage separating parents or spouses to settle things between themselves, that we may have neglected those who cannot, or cannot reasonably be expected to, do so. It is all very well to promote family mediation (as President of National Family Mediation I am naturally a supporter). Fighting in court is financially and emotionally exhausting and unlikely to promote the constructive relationships which are vital to successful parenting in future. But mediation can only work fairly and properly if it is backed up by the knowledge on both sides that a fair and just system of adjudication will be available if it fails. Otherwise the bully will always win. Where the family justice system led, the civil justice system soon followed. Fighting in court is to be avoided if at all possible. Alternative dispute resolution processes are to be encouraged. Once again, however, these can only work fairly and properly if they are backed up by the knowledge on both sides that a system of adjudication will be available if they fail. Not only that, people and businesses need to know, on the one hand, that they will be able to enforce their debts and their civil claims if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which keeps the world of business and commerce going. It is that knowledge which makes every-day economic and social relations possible. Once again, therefore, steps which look as if they may impede such access have to be scrutinised with care.

For example, we can argue about whether or not it should be unlawful to sack a woman just because she is pregnant. But for as long as we have such a law, she has to have a realistic possibility of bringing a claim if the law is broken. It cannot be right effectively to subvert such a law by making it practically impossible to assert the rights which it gives her. Once again, I make no comment on whether the levels at which court and tribunal fees are now set is an unfair deterrent to those who quite properly seek access to justice to vindicate their claims. The point is that, if Magna Carta is to mean anything today, right or justice must not be unfairly denied to anyone.

I cannot resist adding that, as well as being the 800th anniversary of Magna Carta, the 250th anniversary of Entick v Carrington, and the 750th anniversary of the de Montfort Parliament, this is also the 15th anniversary of the coming into force of the Human Rights Act, which has reinforced the great ideas of Magna Carta in many ways, and we all hope and expect that those great ideas will be at the forefront of any proposals for reform. So, I ask again, did that brave Hungarian peasant girl die in vain? I think not. The pledges which she made King John ‘sign’ remain the basic principles of our Constitution today. But we all have to be alert to maintain those principles in the face of the very different risks and complexities of the modern world.

October 22, 2015

English – Speaking Union: My Magna Carta winners announced

Wednesday, 21st October
The English – Speaking Union. Click here to read this article as it originally appeared.

The English-Speaking Union is delighted to announce the overall winners of the My Magna Carta international creative writing competition, following the grand final at Dartmouth House on Thursday 15 October 2015.

13 finalists from all corners of the globe presented their entries to an invited audience, leaving the judging panel with a very tough decision. Judges and audience members alike were overwhelmed by the quality of each presentation.

Jane Josefowicz
, from the USA, won the overall Junior prize and Mfundo Radebe, from South Africa, won the overall Senior prize. Jane and Mfundo each received a certificate and a manuscript of their winning entry, published on parchment thanks to William Cowley. Marie Georgette Spiteri, from Malta, was awarded a special commendation in the junior category, and Sofija Jovanovic, from Serbia, won a special commendation in the senior category. Mfundo’s and Jane’s essays can be read here, along with all of the other finalists’ entries.

All of the finalists enjoyed a full week in London, with cultural activities, public speaking training and opportunities to exchange ideas and make new friends.

“My favourite thing about being involved with the My Magna Carta Competition…was meeting a lot of new people – we clicked right away”

Sofija Jovanovic, Serbia, My Magna Carta Finalist (Special Commendation)

The judging panel consisted of [Chair] Professor Kate Williams (author, historian, broadcaster and lecturer at Royal Holloway), Professor Sir Robert Worcester (Chair of Magna Carta 800th Committee and former ESU Governor), Professor Justin Champion (Professor of the History of Ideas, President of the Historical Association and advisor to the 2015 Magna Carta Exhibition) and Professor James Raven (Deputy Chairman of the ESU, Fellow of Magdalene College University of Cambridge and Professor of Modern History The University of Essex and author).

“I believe that young people are still inspired by the Magna Carta because they want to make a better world…they want to increase equality and diversity”

Professor Kate Williams (Chair)

My Magna Carta was run in partnership with Royal Holloway, University of London. The ESU is grateful to the Magna Carta 800th Committee for its funding.

October 19, 2015

Speech by Lord Dyson: Magna Carta and Compensation Culture

13 October 2015. Rt Hon Lord Dyson, Master of the Rolls at The High Sheriff of Oxfordshire’s Annual Law Lecture.

1. My first idea was to give a lecture about the so-called Compensation Culture: what is it and should we be concerned about it? That is a topical subject which the organisers of the lecture thought would be of interest. But as we all know, 2015 is the 800th anniversary of Magna Carta and it was pointed out to me that the Bodleian Library has no fewer than 4 of the 17 surviving pre-1300 engrossments of Magna Carta. So I was asked whether I could introduce a Magna Carta theme into my lecture? I did not want to give up on Compensation Culture. Hence the somewhat Delphic title of the lecture “Magna Carta and the Compensation Culture”. The title was the easy bit.

2. On Christmas Eve 1166, Henry II’s youngest son John was born at Beaumont Palace in this great city. The Palace no longer exists, but set into a pillar on the north side of Beaumont Street is a stone which bears the inscription “near to this site stood the King’s Houses later known as Beaumont Palace”. John was not a good king. According to one historian he was not even a good ‘bad’ king’. Unlike his Angevin predecessors who were ‘effective tyrants’, John did not even qualify to earn that doubtful accolade. As we approach the end of 2015, we do not need to be reminded that the most enduring consequence of John’s reign is Magna Carta.

3. Magna Carta, or – as it was originally known – the Charter of Runnymede, started life as a peace treaty between John and his barons, a significant number of whom could no longer tolerate the way in which he abused his powers as King. A particularly egregious example was his misuse of the justice system. In the words of McKechnie, he used it to satisfy ‘his lust and greed’. The machinery of justice was nothing more than ‘instruments of extortion and outrage’ by which he could channel the flow of ever increasing amounts of money into the royal coffers.

4. One of the ways in which John achieved this was by selling justice to the highest bidder. Since 1209, the Court of Common Pleas had followed the King around the country. Cases were decided by the King’s Court. In addition to John, it included ‘the whole body of counsellors, ministers, knights, clerks and domestic servants who (accompanied the King).’ Not an independent court, as we would know it. Decisions were made either by the King himself or, if by others, they were heavily influenced by him.

5. This system provided the perfect environment for the making of what were known as ‘proffers’. Proffers were payments of money made by litigants to the King in order to obtain favourable decisions. And if one litigant was willing to make a proffer, his opponent might consider that he had to make a higher proffer in order to win the case. In other words, justice was sold to the highest bidder on the basis that they would receive a pay-out if judgment was obtained in their favour. Money was not only paid to secure favourable decisions at the end of a hearing. It was also paid to halt justice in its tracks. In order to secure support for his war efforts, in 1206 John offered the incentive to his knights that, if they joined the army, claims against them would be stayed.

6. In view of John’s predilection for deciding disputes involving his barons which would previously have been dealt with by a Court of Barons – that is by the barons’ peers–it is hardly surprising that in 1215 abuse of justice featured prominently in the list of the barons’ grievances and consequently in the clauses of Magna Carta.

7. Thus chapter 17 provided: “ordinary lawsuits shall not follow the royal court around, but shall be heard in a fixed place”. The Court of Common Pleas was to resume sitting at Westminster Hall. Chapter 45 guaranteed that the King would only appoint ‘such men that know the law of the realm and are minded to keep it well’ as judges. No longer were claims to be decided by those unqualified in the law. Chapter 39 provided that ‘No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by lawful judgment of his peers or by the law of the land.’ The barons were to be judged by their peers in the Barons’ Court or by the law of the land. No longer were they to be subject to the capricious rulings of the King and his court. And Chapter 40 guaranteed that ‘To no one will we sell, to no one will we deny or delay, right or justice.’ The age of the proffer, of abuse of the justice system as a means of swelling the Exchequer’s coffers, was to be brought to an end.

8. Chapters 39 and 40 are famous to this day. They have a resonance which continues to thrill. They remain on the statute book, in slightly revised language, as section 29 of the 1297 version of Magna Carta. While they were born out of the barons’ immediate concerns to put an end to John’s abuse of the justice system at their expense and to restore their privileges they have, over the centuries, taken on a life far beyond that narrow self-interest. They stand today as a symbol of our commitment to equality before the law, access to justice and the Rule of Law. In the 17th century they were an inspiration for Lord Coke CJ and the Parliamentarians in the struggle between the Stuart Kings and Parliament. Later they inspired the American revolutionaries in their battle against the English.

9. One tenet of Magna Carta that remains as valid now as it was in 1215 is its statement that justice shall be done by ‘the law of the land’. It is not surprising that our view of what the law of the land should be today differs markedly from what the barons thought it should be in 1215. But the principle that justice should be done according to the law of the land is as important today as it was in 1215. Establishing and preserving the rule of law is a vital pillar of our democratic system. To use the language of a later version of Magna Carta, justice must be determined according to ‘the due process of law.’

10. Our common law has developed over the centuries in response to changing social and economic circumstances. Sometimes it has developed slowly and almost imperceptibly; sometimes it has taken large strides forwards. All of this is entirely consistent with the rule of law provided that the developments are visible, applicable to all who wish to have access to the law and disputes as to the application of the law continue to be determined fairly by independent judges.

11. A well-known example of a giant leap forward of the common law in this country is the famous 1932 case of Donoghue v Stevenson. The alleged facts are probably well known to many of you. Two people went into a café in Paisley, near Glasgow. One bought the other a bottle of ginger beer. Half the contents of the bottle were poured into a glass and consumed. The rest of the ginger beer was then poured into the glass. A rather strange-looking object fell out of the bottle. On close inspection it appeared to be the decomposing body of a snail. Shortly afterwards the woman who drank the ginger beer developed a severe stomach upset. She started proceedings claiming compensation from the manufacturer of the drink.

12. She could not claim damages for breach of contract because she had no contract with the manufacturer or with the owner of the café. She framed her claim in tort. But at that time it had not been established that such a claim could be made. In one of the most far-reaching and important cases in the development of our law, the House of Lords decided that such a claim could in principle be brought in the tort of negligence. Thus, provided that the manufacturer owed the woman a duty of care and she had suffered loss as a result of a breach of that duty, she would be entitled to compensation for her loss. The House formulated the rule for determining whether a duty of care was owed. The essence of the rule was enshrined in the “neighbour principle”. This was a far cry from simply asserting that, provided that the woman had suffered loss as a result of consuming the ginger beer, she would be entitled to compensation. This was a principled development by our independent judges of the law of the land as expressed in our common law. It was made in response to the perceived social and economic needs of the time. In its essentials, it was a natural application of the principles of Magna Carta.

13. It is time to turn to the issue of compensation which lies at the heart of this lecture. The socalled compensation culture has been criticised as a form of abuse with as much passion as the barons complained of John’s abuses. An article by Professor Frank Furedi in 2012 complained about it ‘poisoning our society’. A number of academic, government and Parliamentary studies have made recommendations as to how it should be tackled. Parliament has twice passed legislation aimed at eliminating or at least reducing it: the Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015.

14. There is nothing new in the idea that, where a right is infringed, monetary compensation is the primary means by which the law makes good any loss caused by the infringement. It was present in the first English law code, issued by King Æthelberht, King of Kent, in about 602 CE.12 It set out a detailed set of fines and compensation. If, for example, a freeman was found to have committed adultery he would be required to pay the injured party a ‘wergeld’ – the value of the injured party’s life. He would also have to ‘provide another wife with his own money, and bring her to the other.’ More prosaically: loss of an eye required payment of fifty shillings compensation; loss of a thumb, twenty shillings; and loss of the shooting finger – the one needed to use a bow and arrow effectively – eight shillings. If you cut someone’s ear off you were required to pay compensation of twelve shillings. If you merely mutilated it, you would only have to pay six shillings.18 If, however, you cut the ear off and your victim was deaf in the other ear, you would have to pay twenty-five shillings. Compensation was proportionate to the harm; a requirement that was later echoed in Magna Carta’s treatment of criminal offences: it required punishments to fit the crime – to be proportionate to the offence.

15. By the 19th Century, the idea of compensation for harm was as well established as it had been in the 7th Century. Records held by Aviva, the insurance company, provide some fascinating detail. A grocer who slipped while playing blind man’s buff was awarded the equivalent of £724 compensation. A travelling salesman who was watching an accident, while on the top deck of an open-topped tram and was hit by a pole received the equivalent of £401 compensation. A wedding guest who was hit in the eye with rice thrown presumably over the happy couple received the equivalent of £2,994. And, for slipping on orange peel whilst shopping, a bank clerk received the equivalent of £8,901 compensation. The level of compensation may have changed over time, but the principle underpinning the Anglo-Saxon and Victorian approaches was the same: if one person was legally responsible for causing harm to another, he was required to pay the victim compensation to vindicate his rights and make good the harm caused. This principle continues to apply today. We have our own version of Æthelberht’s code which indicates the level at which compensation should be awarded. The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases is a distillation of typical awards of damages made by judges for various personal injuries. For example, it states that loss of an eye now attracts between £40,300 and £48,200 compensation; and minor or transient eye injuries, such as that which the Victorian wedding guest suffered, would attract compensation of between £1,620 and £6,400.

16. There is therefore nothing new about the idea that the law requires the payment of fair compensation for harm which results from civil wrongs. It is long established. It is one of the hallmarks of the Rule of Law and of the law of our land. But what is compensation culture and how does it fit in to all of this? Lord Falconer, who was Lord Chancellor at the time, gave an apt definition in 2005. He put it this way:

‘‘Compensation culture’ is a catch-all expression. . . It’s the idea that for every accident someone is at fault. For every injury, someone to blame. And, perhaps most damaging, for every accident, there is someone to pay.”

It is the idea that for every accident and every resultant injury or loss, someone other than the victim of the accident is to blame. The victim must, therefore, always be compensated. It is important not to confuse compensation culture with no fault compensation. No fault compensation is a legal principle according to which a person (C) is entitled to compensation for loss caused by another person (D) regardless of whether D was in any way at fault. This is an intellectually respectable principle which society may choose to embrace. But in doing so, it must face up to its costs and economic consequences.

17. On the other hand, the compensation culture is not a legal principle at all. It has not displaced the principles of the law of negligence, whose essential elements remain as they were propounded in Donoghue v Stevenson. Rather, to the extent that it exists, it is evidence of an attitude borne of an expectation as to how in particular defendants will behave in their approach to the application of the principles of the law of negligence. In short, an expectation that defendants will pay up rather than fight and risk losing. This has led to the idea that the compensation culture implies that there is no need to establish that a duty of care was owed to the injured party by whoever is viewed as being responsible; and there is no need to establish a breach of duty and causation of loss. All that the injured person has to do is to litigate (or even merely threaten to litigate) irrespective of the legal merits of the claim, and compensation will follow.

18. One consequence of this is the view that as a society we have undergone a cultural shift. No longer is British society characterised by a somewhat philosophical and accepting approach to life. On the contrary, the view is taken that we are becoming more American in our approach; more ready to rush into litigation. To borrow from Tony Weir, we have become a ‘wondrously unstoical and whingeing society with (an) endemic compensation neurosis’, and which rather than sees us ‘grin and bear it’ sees us ‘grit (our) teeth and sue’.

19. Perhaps even more dangerously, this shift in approach has been accompanied by a growing concern that an unjustified burden is now being placed on employers, businesses, schools, the NHS and local and central government (as regards payment of compensation and, even worse, legal costs which often substantially exceed the amount of compensation). To make matters worse, all of this is said to be giving rise to defensive practices on the part of such bodies. It is said that, as a consequence of the compensation culture, schools now ban conker fights on health and safety grounds; and school trips no longer take place. I should say that the conker story rests on a misunderstanding of the law by a no-doubt well-meaning head-teacher and has been described by the Health and Safety Executive as ‘a truly classic myth.’

20. Media stories to this effect are commonplace. They tend to be about payments of large amounts of money for seemingly trivial injuries; not unlike those mentioned in Aviva’s records from the 19th Century. In June 2011 a school pupil was reported as having received nearly £6,000 in compensation. He had burnt his hand at school during his lunch break. Spilt custard was the cause. In 2013 a police officer was reported to have received £10,000 in compensation for injuries caused by a fall from a chair. More recently, a payment of £12,000 was reported to have been made to someone who was injured by a ‘toilet lid while flushing’. Someone else was apparently paid £12,566 compensation for injuries caused as a result of a foot becoming stuck in a Henry Hoover. A Google search will no doubt reveal many more such stories, each of which furthers the perception that something has gone badly wrong with civil justice in this country.

21. All of this acts as a spur to enterprising solicitors to encourage clients to launch speculative claims on a no-win no-fee basis. Clinical negligence claims are a good example. Some solicitors advertise their services on boards close to hospitals informing patients that, if they have not been satisfied with their treatment, they can sue the hospital authority at no cost to themselves. But many unsuccessful treatments are not the result of negligence. Patients may die despite the best possible surgery. The harsh commercial reality is that the legal costs to the NHS of defending a clinical negligence claim are often out of all proportion to the amount of damages that it will have to pay if the claim is successful. For this reason, the NHS is often willing to pay a claimant a sum to buy off a claim, even one which it considers is likely to fail. Claimant solicitors are only too aware of this.

22. I should also mention whiplash claims. These are claims for damages for whiplash injuries usually sustained in motor accidents. It has been said that whiplash is a peculiarly UK disease. It accounts for about 80% of car accident injury claims. In other countries, the figure is far lower. There is no doubt that there has been something of a whiplash industry in our country in recent years and our Government is rightly trying to do something about it. The problem is that insurers usually pay up because the cost of contesting the claims is simply too high. All of this would tend to suggest that litigation is out of control and that we are in the grips of compensation fever. Is this really the case? As I shall now explain, the situation is not straightforward.

23. Let us take the case of the school child who was reported as having received almost £6,000 for the burn that he sustained from hot custard. It is easy to see how this could be portrayed by the media as an example of the compensation culture running riot. £6,000 may seem a ridiculous amount of money to pay by way of compensation for a burn caused by custard. But how hot was the custard and how serious the burn? If it caused no real pain or lasting harm, then the payment was clearly exorbitant. But if the burn was severe and painful and left permanent scarring, the position would have been quite different. In other words, one’s perception of the reasonableness of compensation is coloured by the way in which the story is presented.

24. The difference between perception and reality is well illustrated by two famous examples drawn from America. They were relied on by Anthony Hilton in an article he wrote in the Daily Mail in 2003. He said: ‘The claims culture and the compensation culture have taken root [here]. . . It is not as bad yet as in the United States, for which we should be grateful. McDonald’s had to pay out for not telling a customer the coffee she bought and then spilled was hot, but a similar claim here was tossed out because coffee is meant to be hot. That is as nothing, however, when compared with the Winnebago case where the driver left the wheel of his mobile home while his vehicle was speeding down the freeway and went into the back to brew a coffee. With no-one steering, the vehicle crashed, but the owner sued successfully because no-one had told him it was unsafe to leave the driver’s seat when doing 70mph.’

25. The facts alleged in the Winnebago case were that a woman was awarded $1.7M in compensation after putting her motor vehicle on cruise control at 70 mph, and then getting up to make herself a cup of coffee in the back. She claimed that Winnebago (the manufacturer) should have warned her that she could not leave the driver’s seat after putting the cruise control on. The basis of the claim was that it had failed to put a warning in the driver’s manual explaining that cruise control was not an auto-pilot device. This is an extraordinary tale and, if true, would have been a good example of the wilder excesses of the compensation culture. But the problem with the story is that it is simply not true. As the Los Angeles Times described it, it was “a complete fabrication”.

26. As portrayed by the media, the spilt coffee case involved a woman who foolishly placed cup of hot coffee between her legs while she was driving a car. She had bought the coffee from a drive-thru McDonald’s. She had to brake the car suddenly and the coffee spilt over her legs. She sued McDonalds. They were to blame for her burnt legs. A court agreed and she was awarded many millions of dollars in damages. That is the story; the reality is rather different.

27. The case was a real case, namely Lieback v McDonald’s Restaurant. Stella Leiback, the injured party, was in a car. But she was not driving. She was a passenger. And the accident did not occur when the car suddenly stopped. It happened when it was stationary. She had not placed the coffee between her legs because that was convenient whilst she was driving. She placed it there to hold it still while she tried to take the lid off. The coffee was extremely hot. In fact, it was between 180 – 190 degrees fahrenheit. It did spill and burn her. It caused third-degree burns to various parts of her body, resulting in a hospital stay of eight days for treatment, skin grafts. It caused her to suffer permanent scarring and two years’ partial disability. She did not rush to the courts. She only sued McDonalds after it had rejected her request for payment of her medical expenses and her daughter’s lost wages (her daughter had had to take time of work to look after her). In total she had asked for $10,000 to $15,000. In the face of that refusal, she issued proceedings not in negligence, but under a certain strict liability statutory provisions.

28. The claim went to trial before a civil jury. Jurors can comment on their experience in the US. Some of them were reported as having commented that they were ‘insulted’ to be asked to hear such a case, that it ‘sounded ridiculous’, and that it was a waste of time over a ‘cup of coffee’. It seems that these jurors thought that this was a case of compensation culture run wild. But their view changed during the trial. The evidence showed that between 1982 and 1992, more than 700 claims had been brought against McDonalds arising out of coffee burns, some of them third-degree burns. McDonalds knew that the coffee, which it insisted on serving at a temperature of between 180 and 190 degrees, was dangerous. Its quality assurance manager admitted that the coffee was not ‘fit for consumption’ and that it would scald the throat. Its expert witness accepted that coffee served at more than 130 degrees could produce third degree burns, and that coffee served at a temperature of 190 degrees would burn skin in two to three seconds. It is, therefore, not surprising that the jury was willing to find that the coffee was a defective product, and that McDonalds had sold it in breach of the implied warranty of merchantability and of fitness for purpose.

29. The jury found in Ms Leiback’s favour, albeit with a reduction of 20% for contributory negligence on her part. She was awarded $160,000 for the injuries and $2.7 million in punitive damages, which was intended to represent two days’ profits earned by McDonalds from coffee-related sales. The judge reduced this aspect of the award to $480,000. Despite the judgment, the claim was subsequently settled for an undisclosed sum, no doubt in the face of a possible appeal. It can therefore be seen that the portrayal of this case by Mr Hilton in his article was a caricature. This was a serious claim which amply justified an award of compensation.

30. So what is the position in England and Wales? The perception is clear: compensation culture has taken firm root here and unwarranted and excessive compensation is routinely paid to claimants. This perception seems to persist despite studies and reports showing, as a Parliamentary enquiry put it, that the ‘evidence does not support the view that increased litigation has created a “compensation culture”. It is worth asking whether the behaviour of our courts has contributed to this perception. Let me give you some examples which show that our judges are astute not to do anything to encourage the bringing of unjustified claims.

31. My first example is an English version of the US McDonald’s coffee case. In 2002, thirty-six claimants, the majority of whom were children aged between four and sixteen, sued McDonalds. The claims were all for personal injuries which were said to have been caused by spilled hot drinks. Some of the claims were based on alleged negligence; others were brought under consumer protection legislation. As Field J put it, there ‘was a risk that a visitor might be badly scalded and suffer a deep thickness burn by a hot drink that is spilled or knocked over after it has been served.’Unlike Ms Liebeck, the claimants failed on all issues. McDonald’s was held not to have been negligent in serving coffee at high temperatures. The judge held that the cups and their lids had not been designed and manufactured negligently and there had been no breach of consumer protection law.

32. My second example is Tomlinson v Congleton Borough Council & Others which was decided by the House of Lords in 2003. One hot bank holiday in 1995, the claimant decided to go for a swim. He and friends were in the local park. They had been there many times before. In the park there was a flooded sand quarry, which had been made into a place for families to sunbathe and paddle in the water. As it was such a nice day and he was hot, the claimant decided to dive into the water to cool off. This was not the first time he had done this. Tragically however he hit his head on the bottom of the quarry. He broke his neck and, as a consequence was left a tetraplegic. He sued the local council. The House of Lords rejected the claim. In doing so Lord Hoffmann reiterated a principle that is entirely at odds with the idea that our courts are promoting a compensation culture. He said:

‘. . . the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one’s own fault or even not one’s own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else’s fault.’

The law is fault-based. It requires a claimant to establish a duty of care, breach and causation of loss. These are not always straightforward matters and if a claimant fails to establish any one of them, his claim fails. The courts have not in recent years lowered the hurdles that a claimant must surmount.

33. My next example concerns occupiers’ liability as well as negligence. It is the case of West Sussex County Council v Pierce, which I heard in the Court of Appeal, and which the Daily Telegraph reported could have led to water fountains being ‘banished’ from schools. The claimant was a nine-year-old boy. He and his seven-year-old brother were in the school playground. They went over to the newly fitted stainless steel water fountain. It was of a type that is common throughout schools in England and Wales. The younger brother sprayed the claimant with water from the fountain. He retaliated and tried to punch his brother, who was cowering underneath the fountain. He missed, and his punch hit the underside of the fountain. He sustained ‘a laceration to the dorsal aspect of his right thumb and associated tendon damage.’

34. Apart from a small scar to his thumb, he made a full recovery. The claim was brought against the school on the basis that the water fountain had a sharp underside edge, which posed a ‘real and foreseeable risk of children coming into contact’ with it. It was said that the school had failed to consider the risk or take steps to mitigate it. At trial, having examined the water fountain, the judge held that it was sharp and that the school was liable for failing to consider the risk. The Court of Appeal overturned the decision. It too examined the water fountain, but did not agree that it could properly be described as sharp. It also held that the wrong legal test for liability had been applied by the judge. The legal question was whether, viewed objectively, the school was reasonably safe to those on the premises bearing in mind that children ‘are inclined the lark around.’ It was, and as Sharp LJ put it, ‘The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.’

35. Espousal of the compensation culture might suggest that any injury caused in the course of games or sporting activities ought to result in an award of damages. If correct, this would have a seriously adverse effect on professional sport as well as school and amateur sports. In 2004 in the case of Blake v Galloway, if you will forgive reference to another case in which I was involved, the Court of Appeal was asked to consider the question of liability for such injuries in a somewhat unusual context. The claimant was with a group of friends practising as part of a jazz quintet. They decided to take a break from their rehearsal. They went outside and started playing a rather bizarre impromptu game. It involved picking up and throwing twigs and bark at each other. The claimant picked up and threw a four-centimetre piece of bark at one of the others which hit him on the leg. His friend picked it up and threw it back at the claimant. It hit him in the right eye and caused a significant injury. The claimant issued proceedings alleging that the injury was caused by the defendant’s negligence and/or battery. The defendant, amongst other things, contended that the fact that they were playing a game meant that any liability was vitiated by the claimant’s consent. To rely on a consent-based defence it is however necessary first to establish liability. The Court of Appeal held that liability had not been established. In an informal game such as that in which the claimant and his friends had engaged (like in organised sport), liability was not established unless the offending conduct amounted to either reckless conduct or exhibited a very high degree of carelessness. If the defendant had, for example, chosen to throw a stone rather than a twig (contrary to the conventions of the informal game in which they were involved), that might have been reckless and sufficient to amount to a breach of duty of care. But what happened in this case was simply an unfortunate accident. There was no actionable negligence. What about the claim in battery? The general rule in sporting activities that involve the risk of physical contact is that the participants impliedly consent to such contact as can reasonably be expected in the course of the game. There was such implied consent here, as long as the participants did no more than throw twigs according to the tacit rules of their informal game. The defendant had done no more than this. The claimant accordingly had given his consent and could not establish liability for battery either. His claim was, therefore, rejected. This is another example of our courts adopting a robust, common sense approach to claims for compensation which is inconsistent with the idea that they are giving encouragement to the advancement of a compensation culture.

36. What do these four cases illustrate? I think one answer is that our courts are well aware of the dangers of contributing to the idea that all injuries should result in compensatory awards. They are decisions that cannot be seen as encouraging the idea that anyone who suffers an injury has a remedy in damages. The judgment of Field J in the Bogle case applied conventional, well-known and well-understood principles of law. The Tomlinson case underscored the necessity of establishing fault. The Pierce case showed that the risk of injury has to be real and foreseeable; remote or fanciful risks will not suffice. And Blake emphasised the need for culpability to the requisite standard as a condition of liability. A common theme is that accidents can and do happen and that the law does not compensate for accidents in the absence of legal responsibility.

37. Thus the reality of what goes on in our courts does not match the perception that we are in the grip of a compensation culture. The difference between the reality and the perception is problematic. In 1979 two US scholars wrote a famous article entitled Bargaining in the Shadow of the Law: the case of divorce. It considered the effect that the framework provided by the law had upon divorce or rather the impact that legal framework had upon ‘on negotiations and bargaining that occur outside the courtroom.’48 The essential point that has been repeated by a number of scholars, including recently by Professor Dame Hazel Genn, is that the law casts a shadow far beyond the courtroom. It guides conduct. It provides the framework within which businesses operate, schools organise activities for pupils, doctors operate within hospitals, local authorities maintain pavements and so on. Moreover, it helps to create as Professor Genn puts it, ‘the credible threat of litigation if settlement is not achieved.’We act in the shadow of the law. What if the shadow is a false one? If, for instance, we have a false perception that the law prohibits certain activities or requires certain steps to be taken, we are likely to act in accordance with this perception. A perception that the law requires compensation for any accident regardless of the circumstances is likely to lead individuals, businesses and governments to act on the basis that the perception is true. This might have the consequence that nobody apologises for bumping into another person in case that is taken as an acknowledgement that an accident has occurred which attracts legal liability.

38. Another consequence might be that schools ban certain activities as a result of their misperception of the law. More significantly perhaps, a false shadow of the law might lead to threats of litigation and then to settlements that would not have been made if the law had been properly understood. This last concern is particularly worrying. As I said earlier, defendants are probably often induced to make what they refer to as “commercial” settlements for reasons which have little, if anything, to do with their assessment of the likely outcome of a court hearing. Litigation is inherently uncertain. The behaviour of witnesses and, dare I say it, judges is unpredictable. Most troubling of all is the fact that the cost of litigation is so high. Legal fees are exorbitant. The laws of competition and the market place seem to be helpless in resisting the rising tide of the cost of litigating. Many would-be litigants simply cannot afford to go to court. The obvious solution is to introduce reasonable and proportionate fixed legal costs. Our Government is taking a long time to grasp this nettle.

39. Meanwhile, the perception that we are in the continuing grip of a compensation culture casts its false shadow. It is a shadow that should vanish if the litigation landscape is surveyed properly in the bright light of the cases that have been, and I trust will continue to be, decided in this country. I have only mentioned four such cases. There are many more. They do not attract media publicity. That is because they are balanced and sensible and therefore do not make for a good story. They do not support the existence of a compensation culture. They are applications of “the law of the land”, that precious gem which shines in clause 39 of Magna Carta and which, 800 years later, continues to be rightly valued as essential to the well-being of our system of justice.

40. The link between the compensation culture and Magna Carta may not be immediately obvious. The existence of the link would certainly not have occurred to King John and the barons. Indeed, I am certain that I would not have chosen the title of this lecture if I had not been delivering it in 2015. But perhaps the link becomes a little less Delphic when one focuses on the significance of the phrase “the law of the land”. In this year when we celebrate the 800th anniversary of Magna Carta, just as the barons demanded their right to receive justice according to the law of the land, we should remind ourselves of what the law actually requires and do what we can to explode the false perception of compensation culture.

41. Thank you.

October 14, 2015

Magna Carta not welcome at Beijing university

The Financial Times, 14th October 2015.
By Lucy Hornby in Beijing.
Click here to read the article as it appeared on the FT website.

Eight centuries after the Magna Carta was issued, it is still making waves — this time in Beijing, where nervous authorities have blocked an exhibition of a rare parchment copy of the “foundation of freedom” charter. Far from cementing a touted “golden era” of Sino-British relations, authorities apparently worried that the Magna Carta, which threw medieval England into a spin by curbing the monarchy’s powers, would sow unwelcome ideas into the minds of Chinese students.

The exhibit, which was to have helped kick off next week’s visit by President Xi Jinping to the UK, is now nestling in the quieter halls of the British ambassador’s residence rather than Beijing’s Renmin university campus.

China’s view of the rule of law chafes somewhat with that espoused by the Magna Carta, described by the late English barrister Lord Denning as “the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot”.
China is promoting its own rule of law while in the throes of a political consolidation under Mr Xi that has led to tighter controls over civil society, the media and academics.

Observers quip that China’s vision is closer to “rule by law”, where an authoritarian state exerts its own power through laws and courts rather than itself being subject to those laws, as enshrined in the Magna Carta.

The charter itself, signed by England’s unpopular King John in 1215 and handing justice and the right to a free trial to all, contains provisions also found in China’s constitution. Indeed, the Magna Carta is called “Da xian zhang” or “Great Constitution Charter” in Chinese.

However, the term “Constitution” is sensitive in modern days, after the ruling Communist party squelched progressive lawyers’ efforts to force it to adhere to China’s own laws, a movement known as “Constitutionalism”.

A leading figure in that movement, lawyer Xu Zhiyong, is serving a prison sentence on charges of “disturbing public order” after he tried to organise a public campaign for officials to reveal their wealth.

The eleventh-hour switch of venue for the Magna Carta, on loan from Hereford Cathedral, was forced after Beijing’s approvals failed to materialise. “There are some formalities they needed to go through if we wanted to display it,” said a scholar affiliated to Renmin university.

Some Chinese students in the long line outside the residence said they had skipped class to see the document. But for history graduate student Liu Yongxi the change of venue was welcome.

“I think its even better to see it here,” she said. “You have a stronger sense of tradition, of Britishness.”

Earlier in September Renmin university did manage to hold a seminar on the Magna Carta and rule of law, attended by more than 100 Chinese and foreign scholars including the former president of China’s Supreme Court.

Additional reporting by Owen Guo.

Chinese activists urge Xi Jinping to learn from Magna Carta

The Guardian
Tuesday 13th October. Tom Phillips in Beijing.
Click here to read the original article as it appeared on the Guardian website.

Civil rights campaigners hope arrival of ‘Great Charter’ of 1215 will act as reminder to president about abuses of state power.

Chinese activists have urged President Xi Jinping to visit a rare exhibition of Magna Carta in Beijing, after the text, which some celebrate as a cornerstone of modern democracy, went on display as part of commemorations of its 800th anniversary.

A 1217 version held by Hereford Cathedral, one of only 17 surviving 13th century texts of the “Great Charter”, was put on show at the British ambassador’s residence on Tuesday. It will head to Shanghai and Guangzhou later in the week.

British officials have hailed Magna Carta’s arrival as the latest milestone in a “golden era” of UK-China relations during which Xi will pay a state visit to Britain next week.

Mark Gill, the head of the Magna Carta 800th anniversary committee, said he hoped to boost awareness and understanding of the text, which was issued in 1215 by King John of England and is held up as symbol of governmental accountability and individual freedoms. Fewer than one in five people in China had even heard of it, Gill claimed.

As the Magna Carta went on show, Chinese activists called on Xi – who has been accused of launching an unforgiving crackdown on dissent – to go to see a text the British Library has called “a potent, international rallying cry against the arbitrary use of power”.

“I very much hope that Xi can go and see [the exhibition],” said Yu Wensheng, an outspoken attorney who was among those targeted during a continuing roundup of civil rights lawyers.

Yu said Magna Carta’s presence in China “should serve as a reminder to [Xi] and the leadership that cracking down on lawyers is wrong and futile”.

Liu Shihui, another civil rights lawyer, noted Xi often name-checked famous pieces of writing including Hemingway and Dostoyevsky. “I hope he can spend some time reading Magna Carta,” Liu said.

Sir Martin Davidson, the chairman of the Great Britain China Centre in Beijing for the exhibition’s launch, recognised King John’s text was arriving at a sensitive time. A political chill has descended on Beijing since Xi came to power in 2012 and a severe crackdown is under way.

“One wouldn’t be surprised that it is slightly uncomfortable because I think China is struggling with some of those very big issues about what is the relationship between the state and the law, what comprises the state,” he said.

Many Chinese were interested in Magna Carta because it symbolised the moment at which “the king became subject to the rule of law and the king’s power was, if you like, constrained by the nature of the rule of law”, Davidson said.

But he denied bringing the document to China was an attempt to preach to Beijing. “I don’t think there is any point in saying: ‘We’ve got a system, just copy it.’ That’s not going to happen.”

During a speech in June marking Magna Carta’s 800th birthday, the UK prime minister, David Cameron, celebrated the text as a symbol of “liberty, justice, democracy [and] the rule of law”.

“All over the world, people are still struggling to live by the rule of law and to see their governments subject to that law. The countries that have these things tend to be the long-term successes. Those who don’t tend to be the long-term failures,” he said.

Experts say such ideas will be low on the agenda when Xi’s state visit begins next Tuesday. The British chancellor, George Osborne, recently vowed to make Britain China’s ”best partner in the west” and activists accuse London of falling silent on Beijing’s human rights record to avoid damaging business ties.

Kerry Brown, a former British diplomat in China and the author of a forthcoming book on Xi, said Britain’s China policy was clearly being dictated by the Treasury, with thorny issues such as human rights pushed to one side.

“[Xi Jinping’s visit] is going to be remorseless and relentlessly about parting the Chinese and their money. That is really what we are interested in,” Brown said, pointing to plans for Chinese investment in British nuclear power plants and infrastructure.

China expects Britain to roll out the red carpet during Xi’s visit next week, which involves events in London and Manchester.

But it is unclear how welcome Magna Carta is in Beijing. Plans to put the text on show at the capital’s prestigious Renmin University were unexpectedly scrapped. Asked if Chinese authorities had prevented it from being publicly displayed there, Sir Martin said: “Not that I’m aware of. There simply wasn’t the time to put in place the right mechanisms,” he said.

Additional reporting by Luna Lin

October 12, 2015

The Legacy of Magna Carta

‘The Legacy of Magna Carta: Justice in the 21st Century’, The Right Hon. the Lord Thomas of Cwmgiedd, The Lord Chief Justice of England and Wales, Speech to the Legal Research Foundation, 25th September 2015.
Click here to read the article as it originally appeared.

Introduction
1. It is both a pleasure and a privilege to have the opportunity of speaking at the Legal Research Foundation today, in the year in which the 800th anniversary of Magna Carta is celebrated, in which New Zealand celebrates the 25th anniversary of its Bill of Rights Act and in which the Legal Research Foundation celebrates its 50th anniversary.

2. At this late stage of the 800th anniversary year, I hope you will forgive me if I skip over all attempts at a history lesson, for the use of Magna Carta by the judges of the courts of common law in the seventeenth century and its influence in the bills, charters, declarations and constitutions worldwide are so well known and have been much worked over this year.

3. I will therefore turn at once to the two best known clauses – clauses 39 and 40:
(39) No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.
(40) To no one will we sell, to no one will we deny or delay right or justice.

4. These clauses embody principles that no one now disputes: due process and equality before the law and access to justice. I hope it will be of greater interest if I concentrate on the latter, given the shape of today’s programme. In any event, without proper access to justice, other rights to due process and equality before the law and the detailed principles contained in bills of rights cannot be vindicated. It is also opportune not to overlook what is happening in our contemporary society to access to justice; many unfortunately do.

5. In examining the issues relating to access to justice today, the legacy of Magna Carta is not found only in clauses 39 and 40. I will therefore consider the principles underlying some of the other clauses of Magna Carta to see how they should influence our future thinking so as to safeguard access to justice and the vindication of the other rights.

The context
6. I can only look at the present position in relation to access to justice as a common lawyer based in Europe. In that European context and given developments since the 2008 financial crisis, I think it helpful to look at three significant issues which have to be addressed if access to justice is
to be properly available, so that the other rights set out in Magna Carta and its “offspring” can be vindicated and developed:
i. financing access to justice at a time of tightening of state budgets;
ii. setting the proper scope of the private sector provision of justice;
iii. strengthening access to justice in the courts through technology and reformed processes.

7. It is not apposite for a judge to welcome or regret reduced state budgets, the growth in the private sector provision of justice or the advent of new technology, but it is essential to address each of these if we are to safeguard our legacy and to provide the values embodied in Magna Carta for future generations. This is particularly important so as to preserve the centrality of justice in terms of the maintenance of the prosperity, democratic government and good order of our nations.

Access to justice and the financing of the courts.
8. Along with executive and legislative functions, the provision of a justice system through which the judicial function is exercised is generally accepted as a core duty of the state. Clause 40 embodies what we have come to regard as a fundamental function: the provision of an expeditious and effective system of justice available to all. However, it has certainly in England and Wales never been a system, unlike our National Health Service, that has been free at the point of delivery. The user has always had to make a contribution to its cost through the payment of fees, which have always been charged.

9. There have been philosophical objections to this. Bentham described them as a tax on litigation. He railed against that policy in trenchant terms: Justice is the security which the law provides us with, or professes to provide us with, for everything we value, or ought to value for property, for liberty, for honour, and for life. It is that possession which is worth all others put together: for it includes all others. A denial of justice is the very quintessence of injury, the sum and substance of all sorts of injuries. It is not robbery only, enslavement only, insult only, homicide only – it is robbery, enslavement, insult, homicide all in one. The statesman who contributes to put justice out of reach, the financier who comes into the house with a law-tax in his hand, is an accessory after the fact to every crime; every villain may hail him brother, every malefactor may boast of him as an accomplice.

10. Although the principle of charging fees was much debated well into the nineteenth century as a result of Bentham’s influential abhorrence of the practice, the charging of a fee as a contribution to the cost of providing a system of justice has become so well-established that it would be sterile to question it. Nonetheless the principle set out in clause 40 should never be forgotten. On the last major anniversary of Magna Carta, the 750th in 1965, it was invoked by the then Lord Chancellor in correspondence with the Finance Ministry to mitigate a proposal to raise fees. In the conclusion to a letter, he simply stated:
Magna Carta, whose 750th anniversary we are about to celebrate, provides that we will not sell justice to the people […] I think that in this respect the principle of Magna Carta ought to be maintained.’

11. Clause 40 has therefore been generally understood as permitting the charging of fees, provided that the charging of fees does not fetter or impede access to justice. Therefore the issue for debate has been understood as one of balancing the amount which the general tax revenue ought to contribute (because of the duty of the state to provide access to justice and its interest in ensuring an effective system for justice) and a reasonable level of charge to persons who use the courts. However the starkness of the issues have at times been masked through charging fees for a court process that is often formal but which many have to use. The classic example has been probate fees which, when inheritance taxes were high, made little impact on the administration of an estate, but provided a handsome source of revenue which sustained the court system in England and Wales for many decades.

12. However, much better transparency in state accounting and a tendency to treat access to justice as another public service, combined with increased pressures on public finances, has made this balancing exercise acute. We have seen in England and Wales significant increases in court fees and the introduction in April of this year of mandatory fees to be paid by those convicted of crimes (either by plea or verdict). Whilst the judiciary has taken the view in modern times that modest fees in civil, family and tribunal cases are permissible and in accordance with the provisions of Magna Carta – and has made powerful submissions about the level of fees – it has left the balance as a matter for Parliament to determine.

13. Nonetheless the scale of court fees together with the cost of legal assistance is putting access to justice out of the reach of most, imperilling a core principle of Magna Carta. It is something that the judiciary, working with the executive and legislative branches of the state, needs to address. Overhauling the administration of justice is one way of overcoming these challenges, a topic to which I will return.

14. This concern about access to justice also leads to the next issue: the private provision of justice which some have seen as a possible alternative to the provision of justice by the state through the courts.

The proper scope of the private provision of justice
15. I will first return to Magna Carta. The state has always permitted a degree of the private provision of justice, but made clear that the state has a vital interest in litigation. For example, clause 24 provided: ‘No sheriff, constable, coroners, or other of our bailiffs may hold pleas of our Crown.’

16. This clause concerned the protection of the Crown’s interest in the trying of those accused of serious crime and the reservation of such matters to itself, instead of leaving trials in the hands of local barons – essentially a form of non-royal or private justice. Although the nature of the state’s interest in litigation has changed with time, it must remain a vital interest.

17. Over the centuries, the courts and Parliament have recognised that there are proper reasons why disputes should be resolved other than through the state justice system. For example, in the case of arbitration, it has been long accepted that the role of the courts where the parties have agreed to arbitrate can be restricted to determining points of law and providing enforcement for awards. In recent times, the private provision of alternative dispute resolution (ADR) has again been encouraged as a means for the private resolution of disputes where litigation is too costly or is inappropriate.

18. Even more recently, ombudsman schemes for sectors of business have gained popularity as another means of private dispute resolution, as an alternative to arbitration and ADR. In the UK, the most developed scheme is that for the financial services and insurance sector. This scheme is entirely free to the consumer customers, and has successfully dealt with vast numbers of claims arising out of either one-off disputes or major systemic mis-selling by the sector. Its work is independent and its decisions binding on the business, but not on the consumer who, if dissatisfied, is free to go to court.

19. I mention this scheme by way of example as it has been so successful and is backed by statutory authority. Its success might suggest that ombudsman schemes for different business sectors could provide a proper alternative to the courts as a means of access to justice. Some have even considered whether the enforcement of such decisions can be implemented without recourse to the courts, either through business-wide agreements or through the use of the powers regulators have over industrial sectors.

20. However, there are serious issues as to whether an attempt to provide access to justice by such means is in any way an alternative to the provision of justice by the state through or under the supervision of public courts and tribunals. I will take four by way of example:
i. By and large, the proceedings and processes of regulators or ombudsman are not in public. An essential facet of justice is that it should be open, unless there is good reason for privacy.
ii. The development of the law requires open and public decision making which can be reviewed by an appellate court. Indeed our law cannot develop without it. The provisions of the Arbitration Act 1996 which, since their first enactment in 1979, have permitted opt-out agreements barring recourse to the court and severely curtailing rights of appeal to the court in cases where there is no opt-out have been seen by some as stifling the development of some aspects of English commercial law. It is a danger that must be taken into account more generally – we do need future cases about snails in ginger beer bottles.
iii. Any proper resolution of a dispute has to be by an independent decision maker who is not subject to “industry capture”. Regulatory capture is a well-known phenomenon.
iv. Without the courts and tribunals, through their decisions clarifying and developing the law, the ability of any private dispute resolution mechanism to operate is lost. Such systems depend upon the “shadow of the law” if they are to operate effectively.

21. Therefore, whilst measures that seek to promote compromise over contest so as to avoid unnecessary litigation are to be welcomed, the principles set out in Magna Carta make clear the public interest in the proper provision of justice through the appropriate court. In the modern era, this includes confining private provision of justice to its proper scope and maintaining the role of the courts and tribunals in supervising any such provision.
Strengthening access to justice through the use of modern technology to recast our delivery of justice

22. These matters combined compel us to consider how access to justice can best be made available through the courts. Of critical importance is recasting our system of justice through the use of technology. It is again helpful to consider other provisions of Magna Carta which set out some underlying principles.

The availability of a court
23. It is clear that in 1215, the barons were concerned about access to the courts. This is first reflected in clause 17: ‘Common pleas shall not follow our court but shall be held in some fixed place.

24. The clause exemplifies the fact that a state can unnecessarily impose costs on a litigant by its failure to provide readily available courts. The tale of Richard d’ Anesty illustrates the problems caused to those litigating in the royal courts of justice as they were forced to follow the King as he moved around his realm with the royal judges. In brief, Richard was in dispute with his uncle as to rights over land. As it was necessary to follow the King’s Court, resolution of this dispute, whilst successful, took some five years and journeys to Normandy and London via Rome and Lincoln, to name but a few. The remedy that Magna Carta provided was to require a fixed location for the Court of Common Pleas.

25. The second reflection is to be found in clause 18 and 19 which dealt with the demand for local justice. A pledge was made to send royal justices four times a year on assize. As a further nod to the importance of local justice, royal justices would sit with local representatives elected by the county.

26. Underpinning these three clauses is the clear principle that justice must be made available through the most effective means that the circumstance of the age permit. The local court house specially designed for the different types of case was the nineteenth and twentieth century solution; it is the legacy we have inherited and of which we are rightly fond. However, we have to question whether such provision is necessary today when technology allows us to make justice available in a much more cost effective way.

27. We are therefore considering the introduction of Online Dispute Resolution (ODR) through an Online Court. The concept has initially been analysed in a Civil Justice Council Report with the suggestion of a three-stage approach:
i) avoidance (through information and case analysis);
ii) resolution (through online facilitation and mediation); and,
iii) litigation (by an online court and with a reduced need for lawyers).
28. Similar thinking can be seen in Sir Brian Leveson’s report into Efficiency in Criminal Proceedings, which advocates the greater use of telephone and video technologies to facilitate remote hearings in appropriate cases at the pre-trial stage.

29. If this is feasible, and the work being done suggests that it is, then we can move away from the provision of the much beloved local court and its specially designed features for the majority of small cases. Even where cases require court hearings, we are also questioning whether we really need to maintain the number of designated local court houses. Can we not use ordinary rooms in public buildings to maintain local justice, and access to that local justice, whilst reserving the use of permanent, purpose built court buildings to larger towns and cities?

30. Going hand-in-hand with this thinking in relation to the physical availability of courts, we are examining how best to use IT to recast our procedures. Instead of using IT to support pre-existing paper-based procedures, which has largely been the approach in the past, we are seeing how IT and digitisation can be used to change the way in which the justice system operates.

31. For example, the difficulties with the our current form of civil procedure were illustrated in a lecture given by Lord Justice Richards in June this year, in which he described the difficulties that our civil procedure rules committee experiences in its aim of simplifying our rules of court. As is well known, one of my predecessors as Lord Chief Justice, Lord Woolf, through his two Access to Justice Reports in the 1990s, attempted, amongst other things, to simplify those rules and to make the White Book, containing the rules and a detailed commentary, shorter and more user-friendly. The rules and the White Book grow each year in a less than literary echo of Proust or Joyce. Digitisation will hopefully provide the means to achieve true simplification, by using the tools of digitalisation to simplify processes and contain the length of court papers.

Use of persons other than judges
32. Magna Carta provided in clause 45:
We will not make justices, constables, sheriffs, or bailiffs who do not know the law of the land and mean to observe it well.

33. Most of our systems have developed so that judges, at whatever level, are highly trained specialists. Even in less serious criminal cases, JPs are not allowed to make decisions without the advice of a qualified lawyer. The use of judges to make all decisions comes at an obvious cost.

34. Moreover, our adversarial system and the processes we have developed work best when the parties have lawyers. It was no impediment to access to justice when the state provided legal assistance or the cost of lawyers was modest. That state of affairs has changed.

35. We have therefore begun to create a system which will remove certain judicial work from judges altogether and enable many cases to be dealt with by procedures which can function well, even if the parties do not have lawyers.

36. A recent report by JUSTICE, a UK all-party law reform and human rights organisation which works to strengthen the justice system recommends an increase in the use of “registrars”, who should be legally qualified and suitably trained for making case management and other decisions. The Civil Justice Council Report on ODR to which I have already referred also suggests roles along these lines for persons who are not judges. That report uses the term “facilitators”, with perhaps a slightly reduced remit of work. The JUSTICE report goes further, and points to the possible use of registrars in more than just low-value civil claims. Registrars already exist, to a point, in certain tribunals, and a pilot scheme is in operation in relation to smaller money claims. Clearly their use is an area for development in the coming years.

37. One of the other concepts underpinning both the JUSTICE and the ODR reports is a reduction in the need for legal representation. It is important to remind lawyers at times that the justice system is not there for them (although they unquestionably play an important part) but for the public. Rather than concluding that lawyers are unnecessary, the reports recognise the reality that lawyers are too expensive for many people, notwithstanding attempts to open up the legal services marketplace. The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers.

38. So, again, the potential use of registrars or facilitators in place of judges in the future is something entirely consistent with the principle of clause 45 of Magna Carta. Clause 45 was directed at was that dispute resolution should be in the hands of those who knew the law. That principle is preserved, but in a way that recognises that insisting on the very high level of qualification, skill and experience which our current judiciary provides for all the tasks it currently performs comes at a cost that impedes access to justice. We have to recognise that securing access to justice can be achieved in many cases at much lower cost by using others who know the law and can apply it well.

Conclusion
39. I will conclude by returning to those best known clauses – deciding cases according to law and delivering timely justice – which still carry the force of law today, by virtue of the 1297 enactment.

40. Those principles, together with the principles to be derived from other clauses, looked at through a modern lens, are apposite to the task of refashioning the system of justice so that there is access to the fair, impartial and effective delivery of justice. And, for me, that is a vital part of the legacy of Magna Carta, a legacy that has been exported to justice systems worldwide. For without that, the other rights we shall discuss later today cannot be vindicated.

41. There is, as I have illustrated, a risk that access to justice is not being provided. The cost of accessing the justice system is often prohibitive, be that as a result of reduced spending on legal aid or the rising costs of privately funded legal representation. Many court buildings and many of the processes are outmoded, such that there is an impediment to the timely determination of legal rights and liabilities. All the while, it must be understood that private justice is not an alternative to a public courts and tribunals system.

42. It is therefore necessary to re-cast our justice system to equip it for the present, and to future-proof it so far as possible. Stabilising its financing, making effective use of its buildings, allocating work appropriately, and exploiting the advantages that technology and digitisation can bring are the only way to do this. To do this will be to ensure access to justice in the 21st Century and to safeguard one of the principal legacies of Magna Carta for now and for the future.

43. Thank you very much.

If you have any queries please contact the Judicial Office Communications Team.

August 17, 2015

What Magna Carta and the Race Relations Act mean to us today

What Magna Carta and the Race Relations Act mean to us today‘, 29 July 2015, Sir Rabinder Singh, Runnymede Trust Conference.
Click here to download this speech as a .pdf

I am honoured to have been invited to address you today. The Runnymede Trust is the leading organisation in this country dedicated to the promotion of
racial equality. When it was founded in 1968 by Jim Rose and Anthony Lester it took its name from the meadow by the Thames where the first Magna Carta
was sealed in 1215. I am particularly pleased that, among the understandable and widespread commemorations of the 800th anniversary of Magna Carta,
the opportunity has not been lost also to remember that this is the 50th Anniversary of the first Race Relations Act in this country.

At first sight it is not obvious that there is any link between the two. It is well known that Magna Carta was sealed as part of a power struggle between King John and the Barons. They would hardly have been interested in creating an equal society. Furthermore, many of the references in Magna Carta itself are based on distinctions between people depending on their status: the reference to “all free men” clearly excluded those who were villeins. The institution of serfdom was very much alive at that time. And there were provisions in the 1215 version of Magna Carta which on their face discriminated against Jews.

Lord Sumption, who is not only a Justice of the Supreme Court but a distinguished historian, has described the sentiments which often surround
Magna Carta as “high minded tosh.”1 Although it is undoubtedly correct to question whether many of the modern readings of Magna Carta have any basis
in historical fact, it is also important to recall that the mythology surrounding such documents can itself have continuing impact on a society. As another historian, Professor Linda Colley, has observed, there is a “cult and mode of memory” which rests on bad history and which includes Magna Carta as the most important text in stories of liberty.2 The fact is that the phrase Magna Carta still has resonance for ordinary people in this country and they want to know, as Tony Hancock famously asked in 1957: “did she die in vain?”

And this is true not only in this country but around the world. Surely this is why, when Eleanor Roosevelt unveiled the Universal Declaration of Human
Rights in 1948, she said that it might well become an international Magna Carta for all humanity everywhere.

As Article 1 of the Universal Declaration proudly proclaims, all human beings are born free and equal in dignity and rights. Last year I gave a lecture on the development of human rights thought from Magna Carta to the Universal Declaration. I suggested then that we have come a long way since the explicit inequality which was embedded in the original Magna Carta but that nevertheless the lineage of modern human rights thought can be traced back
to then.

The respected scholar of human rights Francesca Klug has recently put the point as follows: “Whilst it would therefore be wildly historically inaccurate to bestow universal intentions on the multiple authors of the Charter, the principles established in the few clauses that remain on the statute book were nevertheless loosely enough phrased to allow for increasingly generous interpretations in the centuries that followed. Today a phrase such as ‘to no one will we deny justice’ has come to be understood as the very foundation of our modern, inclusive justice system.”

Nevertheless, it is important to be realistic about the limitations of Magna Carta, even making due allowance for its mythical status. To quote Francesca
Klug again: “This is no doubt in part because its legal remedies have been superseded by a range of statutes and case law that address modern concerns for equality and justice which a medieval document could not be expected to even conceive of. The disputes between a King and his English Barons on a field outside Windsor 800 years ago seem very remote from the struggles of a modern, diverse democracy (currently) composed of four nations and citizens who stem from all parts of the world. The Magna Carta would seem to have nothing to offer if you are disproportionately more likely to be stopped and searched by the police because of the colour of your skin or religious affiliation.”

This brings me on to the Race Relations Act. At common law it was not unlawful to discriminate against a person on racial grounds, for example their
colour. In the Britain of the 1960s it was commonplace for employers, estate agents and landlords to discriminate against people on such grounds. Some
progress had been made by the common law, for example the decision of Birkett J in Constantine v Imperial Hotels Ltd.6 The famous West Indian cricketer Sir Learie Constantine had been discriminated against by a hotel, whose white customers objected to his staying there. In that case the Court was able to find in his favour by relying on the common law duty of innkeepers to serve anyone who came to stay at a hotel unless it was for just cause. Nevertheless, it was not racial discrimination as such which was the legal basis of the cause of action in that case. There was no duty at common law not to discriminate against a person on racial grounds when it came to such aspects of life as employment, education and housing.

It was against that background, and also in the international context of the civil rights movement, in the USA in particular, that the Race Relations Act
was born in 1965. Just the year before the US Congress had passed the Civil Rights Act. However, the Race Relations Act in this country was a weaker
piece of legislation and certainly much weaker than what was to follow.

The 1965 Act was limited in its scope; limited as to who could take action under it; and limited in respect of the remedies which could be granted by the
courts.

The Race Relations Act 1965 prohibited discrimination on the grounds of colour, race, or ethnic or national origins. At that time it did not cover nationality. Subsequent case law confirmed that “national origins” did not include the concept of nationality.

Furthermore, the 1965 Act did not cover areas which would now be familiar to us, such as housing or employment. Although the Act applied to “places of
public resort”, including hotels and restaurants, it did not apply to private boarding houses. It did not even apply to shops. The prohibited acts of
discrimination included refusing to serve a person, and unreasonable delay in serving them or overcharging them.

A body known as the Race Relations Board was set up to monitor the work of local conciliation committees. In cases where discrimination continued the
matter was to be referred to the Law Officers, who could apply for an injunction from the court. It was made clear that no criminal liability was
created under the Act.

The background against which the 1965 Act was passed included the Bristol Bus Boycott. In 1955 the Transport and General Workers Union (TGWU) in
Bristol had voted against having black and Asian workers at the Bristol Omnibus Company, which then operated a colour bar until 1963. The bar only came to an end as result of the Bristol Bus Boycott. One of the organisers Ealing LBC v Race Relations Board [1972] of the boycott, Paul Stephenson, is reported to have said on its 50th anniversary: “Fifty years has taught me that racism never dies – it simply slumbers.”

In 2013 the modern successor to the TGWU (Unite) issued an apology for what had happened earlier.

Later the Race Relations Act was strengthened in 1968 and substantially extended in 1976. By now nationality was included as a prohibited ground of
discrimination. The scope of the Act included employment, education and goods and services. That Act extended the concept of discrimination to include indirect discrimination and not only direct discrimination. It created individual rights and a range of remedies, which could be enforced either in
the County Court or in what is now called the Employment Tribunal.

The Race Relations Act 1976 was perhaps one of the strongest pieces of legislation of its kind in the world and certainly in Europe. It long predated
legislation against racial discrimination in EU law, which did not come until the early part of this century.

However, the Act still did not cover discrimination by public authorities in the exercise of their public functions. Following the report by Sir William
MacPherson into the investigation by the Metropolitan Police of the murder of Stephen Lawrence, Parliament enacted the Race Relations (Amendment) Act 2000. One of the main legislative responses to the Stephen Lawrence Inquiry Report was to create a strengthened public sector equality duty, then in section 71 of the 1976 Act. The amended Act also now prohibited racial discrimination by public authorities in the performance of their public functions.

At around the same time the Human Rights Act 1998 came into full force, in October 2000. This gives effect in domestic law to the main rights in the
European Convention on Human Rights, including the right to equal treatment in the enjoyment of other Convention rights, which is set out in Article 14.

By this route we now have a system of law in which even primary legislation can be tested against the standards of the Convention and, in appropriate cases, a declaration of incompatibility can be issued by the higher courts. This is what happened in the so-called “Belmarsh” case, when the House of Lords held that Part 4 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the Convention rights.9 This was in part because it discriminated on the ground of nationality, since the power given to the Secretary of State to authorise the detention of suspected international terrorists applied only to those who were foreign nationals.

As the Runnymede Trust knows better perhaps than any organisation in this country, it is one thing for the law to prohibit racial discrimination. It is
another for society to achieve equality. The social and economic data are well known.

In the last quarter of 2014 the unemployment rate for all people aged 16 plus in the UK was 5.6%. For people of black ethnic background it was 13.9%.
Although for all ethnic groups the unemployment rate was higher among young people aged 16-24, the youth unemployment rate was 16% for white people; 25% for people of Asian ethnic background; and 32% for people of black ethnic background.

The 2011 census figures show that, in England and Wales, the percentage of the population describing themselves as Asian or Asian British was 5.87%.
The percentage describing themselves as Black or Black British was just 2.81%. Contrast that with the figures for the prison population.

The prison population, according to research by the Prison Reform Trust, contains a large proportion of prisoners from a minority ethnic background.
10% of the prison population are black and 6% are Asian. According to the Equality and Human Rights Commission, there is now a greater disproportionality in the number of black people in prison in the UK than in the United States.

Then consider police powers to stop and search. According to the Equality and Human Rights Commission, if you are a black person you are at least six
times as likely to be stopped and searched by the police in England and Wales as a white person. If you are Asian, you are around twice as likely to be
stopped and searched. 10 Research briefing on unemployment by ethnic background to be found on the UK Parliament website.

What about those who exercise the power of the state on behalf of the public? Although there had been members of Parliament from minority ethnic backgrounds historically going back to the 19th century, in the postwar period they only started to become elected to Parliament in 1987, when four MPs
were elected. That represented 0.6% of the membership of the House of Commons. That figure has now increased to 42 MPs in the House of Commons elected in May this year, representing 6.6%.

When it comes to judicial appointments, the picture is mixed. The proportion of BAME judges at lower levels of the judiciary and amongst fee paid judges,
for example Deputy District Judges and Tribunal Members, is much closer to the proportion of BAME communities in the population generally than it is at
more senior levels of the judiciary.

Does any of this matter? On one level not, because judges put aside their backgrounds and opinions when they come to a case, and decide it on the facts
and the law. Yet on another level, according to a report in 2012 by Alan Paterson and Chris Paterson, it does matter, particularly in the perception society has of its judges.11 The authors of that report suggest that “the concept that the institutional legitimacy of the judiciary as a branch of government is in some way linked to a reflection of the society it serves.” They suggest that the judiciary from the High Court and above might loosely be described as the “‘politically significant judiciary’ – the judges involved in the day to day review of government decision-making.”12 That is a reference to the important role played by judicial review of administrative action, although that role is now increasingly played by the Upper Tribunal and not only the High Court. It is also worth noting in this context that the power to make a declaration of incompatibility under section 4 of the Human Rights Act is confined to the High Court and above.

Even at the time when I started at the Bar in 1989, it was in theory possible for barristers’ chambers and their clerks to discriminate, both in the
recruitment of members of chambers and in the allocation of work. This is because the Race Relations Act at that time did not extend to barristers. This
was changed by the Courts and Legal Services Act 1990.

Changing the law does not make society automatically fair and does not make all parts of life more diverse. That has more to do with structural features of our society, in particular social and economic factors. The prohibition of racial discrimination does not necessarily lead to diversity in all parts of life, for example in certain professions and occupations. Change can appear to be very slow.

I would suggest that, to understand the nature of our society today, it can be important to recall what was happening 20 years ago or more. Many of the
people appointed to judicial office today, in particular at the more senior levels, were born more than half a century ago. They were at school in the
1960s and 70s, when our education system was completely different from what it is now. For example, hardly anyone today would know what a “direct grant” school was. Yet that is the kind of school I attended 40 years ago.

Many of those who are judges now, like me, were appointed to various offices such as Junior Counsel to the Crown when we were in practice. In 1998 the
Attorney General introduced the modern system for such appointments, in which there is an annual open competition in which every advocate can make an application.

When it comes to judicial appointments themselves the Judicial Appointments Commission was created by the Constitutional Reform Act 2005. It started to run competitions for the High Court bench in 2007. Again all such appointments are made on merit.

So I would suggest that what we are doing as a society now will have an impact on shaping the nature and character of our society for decades to
come. For example the person who will be Lord Chief Justice of England and Wales in another 50 years time is probably a student now. It is unlikely that
we can change things radically overnight. However, what we can do as a society is to take constructive steps now which will have a beneficial effect in
years and decades to come in the future.

It is well-known that the Race Relations Act was never intended to have exclusively legal effect. Such legislation has a symbolic impact and is
designed to educate the public in certain fundamental values of our society. The message was clearly sent out by Parliament that racial discrimination
would not be countenanced in this country and that the principle of equality is fundamental to our society.
                 
As will become apparent at this conference, the Race Relations Act 1965 was a weak and imperfect piece of legislation. Nevertheless, as is often the case in history, what is important about the 1965 Act is that it was the first step on an important journey. That journey has not yet finished. Please note that speeches published on this website reflect the individual judicial office‐holder’s personal views, unless otherwise stated. If you have any queries please contact the Judicial Office Communications Team.

July 29, 2015

John Major: Inaugural Edward Heath Lecture

Inaugural Edward Heath Lecture’, The Guildhall, Salisbury. Wednesday 17th June 2015. The Rt Hon. Sir John Major KG CH, Speaker.

It is a great pleasure to be here this evening in this magnificent Guildhall, to deliver the first Edward Heath Lecture.

Nearby, in the Cathedral Close in Salisbury, is Arundells; the first home that Ted Heath could truly call his own. Ted spent his last two decades living there and it was evident to everyone who knew him how profoundly he loved the house, with its subtle architectural balance, tranquil gardens and stunning view of our greatest Gothic cathedral. It appealed to the inner artist in Ted – and it never lost that appeal.

Next year, Ted would have been a hundred years old. I think he would have been delighted that funds are to be raised – not just for the historic delights of Arundells – but for discussion of international affairs, education and the arts. Ted knew that a rounded life extended far beyond domestic politics, and his own life reflected that understanding: it is a privilege to deliver this inaugural Lecture and Ted would, I think, have approved of the subject.

But – first – if one delivers a Memorial Lecture to Edward Heath, one cannot ignore his great achievement of taking Britain into Europe. This is not the occasion for detailed arguments about the merits and de merits of the present-day European Union: that must await a later occasion when I, for one, will argue that we are far better off working with our partners than in splendid isolation.

But Ted was born during a war that began in Europe, and served through a later one, both of which engulfed the world. It was imprinted on his mind – and that of his contemporaries – that working with our European neighbours would prevent conflict with them: in this, Ted was surely right. It was a view he held to – sometimes in the face of vituperative criticism – for the rest of his life.

And he saw, too, that only a Europe that worked together could ever look the giants of America and China in the eye – as equals. In this, too, he was right.

Our history might cry out that we can survive alone – and I have no doubt we can: but logic suggests we are more likely to thrive in partnership. This, too, Ted understood.

* * * * *

My interest in Magna Carta – the Great Charter – goes back a long way.

As a boy, of course, I was taught about it in that long-ago time when learning about our history was thought to be essential to an education.

Many years later, I came across Magna Carta in a much more personal way. I was in my early thirties, and a young Banker with Standard Chartered. It was 1975 and – because the Bank had interests in California – they wished to contribute in some way to the American bicentenary celebrations the following year.

The then Chairman, Tony Barber – Chancellor of the Exchequer in Ted Heath’s Government – invited me into his inner sanctum one evening, poured a generous drink, and began tossing around ideas of what we might do. Out of that discussion came the notion of borrowing a copy of Magna Carta to display in our branches across California. Whether that was my idea, or the Chairman’s, is lost in the mists of time – or in the afterglow of his generous hospitality – but I was duly tasked with exploring possibilities.

I soon learned there were four remaining copies of Magna Carta: two at the British Library, and one at both Salisbury and Lincoln Cathedrals. The Chairman decided to approach the Dean of Lincoln, the Very Reverend Oliver Twistleton-Wykeham-Fiennes and, upon doing so, we learned that God and Mammon had a far closer relationship than we had imagined: when he heard of the Bank’s interest, the Dean welcomed the money changers into the Temple – or, at any rate, the Cathedral.

Although the Dean was fiercely protective of the Charter, after much to-ing and fro-ing he finally agreed that Lincoln’s Magna Carta could be flown to California – but with conditions. The precious document was to be housed in a fire-proof, water-proof, bomb-proof, bullet-proof, humidity-controlled exhibition box costing £12,000 – over £100,000 in today’s money – and transported in a Vulcan aircraft from RAF Waddington. A second Vulcan was to follow close behind so that – if the first one crashed – we would know where the Magna Carta lay. Thus – even if it rested beneath the waves for decades – the Charter would still be intact when it was rediscovered.

There were some memorable vignettes.

I was told – and I do wish I had seen it – that the box was attacked with flame throwers, flood water and rifle fire to test its protective qualities. As for insurance – no-one was sure of its value – for how can you put a price on such a document?

The Dean knew how. He looked around the Cathedral, at its historic majesty, and speculated aloud about how much it cost to protect and repair its ancient fabric.

We insured Magna Carta for that sum – in the millions – which led Tony Barber to ponder whether the Dean and Chapter might actually be praying secretly for us to lose it.

Inevitably, there were hiccups. The Dean was set to fly to California, and the Bank’s travel section duly booked first-class tickets for Messrs Twistleton, Wykeham, and Fiennes. Fortunately, this was noticed ….

Although I was originally due to accompany the Magna Carta to California, the Chairman decided he needed me to travel with him instead – to an IMF Conference in Manila. So I parted company with the project. It was, however, a huge success, and the Great Charter was returned safely to Lincoln – together with Twistleton, Wykeham and Fiennes ….

*****

Magna Carta, although undeniably English at birth, has become an essential component in the laws of English-speaking nations around the world. In the UK, it underpins our system of law, and was an inspiration to the Chartists and the Suffragettes as they sought the right to vote. In America, its influence is evident in the Constitution, the Declaration of Independence and the Bill of Rights. So it is instructive to examine its origins.

In 1215, the Plantagenet King John was on the throne. His father, Henry II – arguably our greatest King – inherited a Kingdom exhausted by war and anarchy, and initiated a judicial system that evolved into our common law. John’s elder brother, Richard the Lionheart, was a leader of the crusades, and is immortalised outside the House of Lords on horseback, with sword raised aloft. Richard is the quintessential English hero, which is odd, since he was French and spoke little or no English. He spent less than one year of his reign in the country he ruled for ten – but a ransom to save him from prison did nearly bankrupt it.

I digress for a moment to note that St George – he who slayed the dragons and freed maidens – was a Syrian. He, too, spoke no English – and never visited our country. Nor did he slay dragons or free maidens. Of such virtues are English heroes made!

Let me revert to Magna Carta.

On his brother Richard’s death, John became King. Contemporary chronicles pre-date history’s verdict that he was a very bad King indeed. One wrote that “hell itself is defiled by the foulness of John.” Others were less kind. Many expressed sentiments that made today’s tabloid press seem positively tame.

By 1215, John had been on the throne for 16 years. Vicious, lecherous, arbitrary in dispensing justice, untruthful and greedy, he had done little to endear himself to his subjects.

In particular, John’s relationship with his unruly Barons had deteriorated to the point of civil war. This was no accident. He had over-taxed them to fund a war with France that he lost ignominiously. He had a propensity for – I put this delicately – the wives and daughters of the Barons. Angry and rebellious, the Barons demanded the restoration of “ancient liberties” – as enshrined in a Charter of Henry I, one hundred years earlier. But John had no intention of appeasing the Barons, and when he met them in early 1215, he rejected their appeals, and demanded even greater allegiance.

It was a foolhardy gesture and the Barons reacted with force. In May 1215, they captured London and compelled John to meet them again – this time at Runnymede, midway between the King’s army at Windsor and the Barons’ men at Staines. After several meetings – and what today we would call “a free and frank exchange of views”– an embryo Charter was drawn up: “The Articles of the Barons”.

On 15 June a binding agreement was reached: the King would issue what became known as Magna Carta and, in return, the Barons would swear fealty to him. Magna Carta was not signed – there is no evidence John could write – but the 4,000 word document, written on sheepskin parchment in Medieval Latin, was duly stamped with the King’s Seal. Copies were made by monks in the Royal Chancellery, and despatched for public proclamation to towns and cities across England. Magna Carta was born.

What did the Great Charter say? The first thing to understand is that it was a contemporary document drafted for the wellbeing of the Barons. It was time, common practice, subsequent events and re-interpretation of the text by great lawyers that elevated the Charter to its unique status.

The original Charter had 63 clauses, or chapters – many of them trivial. But the two great Chapters were Numbers 39 and 40. They are central to the enduring fame and eternal relevance of Magna Carta today.

Chapter 39:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

In other words – the Barons told the King – don’t think you can act arbitrarily against us.

And

Chapter 40:

To no-one will we sell, to no-one deny or delay right or justice.”

This is a fundamental principle of our law. No-one can be sure who drafted it, but it seems likely that the guiding hand may have been Stephen Langton, the Archbishop of Canterbury. If so, this would have infuriated the King since – in modern parlance, the Archbishop and the King had “previous”.

A decade earlier, when Archbishop Hubert Walter had died, King John had nominated his own candidate, only to find him opposed by a faction in the Church. The Pope, Innocent III, intervened and Langton was consecrated Archbishop without John’s approval. It did not make for a good relationship.

John accepted the Charter under duress and, no doubt, with ill grace. But within weeks, he saw his opportunity to destroy it.

Chapter 61 proposed a Committee of twenty five Barons to enforce Magna Carta, and hold the King to his word. This was anathema to an hereditary Monarch who believed he was above the law. More important, it was anathema to an autocratic Pope who saw here a principle that could threaten his own authority.

When John appealed to him, Pope Innocent quashed Magna Carta in a Papal Bull. It was, he announced, “unjust, shameful – and illegal”. In the Catholic England of 1215, the Pope’s writ was all powerful . But while John rejoiced, the Barons prepared for civil war.

This time, they were serious. They no longer sought concessions. Their plan was to depose John and offer the Crown to Prince Louis of France who – while John was fighting the Barons in the North – had invaded with 7,000 troops . A bloody conflict seemed inevitable when John, at last, did something that would save Magna Carta for posterity: he died at Newark Castle.

John was succeeded by his infant son, nine-year-old Henry, and William Marshall, Earl of Pembroke, became Regent. William Marshall was a genuine hero of the age – and pre-eminent in reputation among the Barons. He re-issued Magna Carta in Henry’s name – but without the contentious Chapter 61 that had so upset the Pope.

Most Barons accepted this – and those that did not were swiftly defeated at the Battle of Lincoln Fair. Louis fled to France, and Magna Carta became more deeply embedded in both the law and folklore of the English.

In 1225, when Henry III was old enough to assume power without a Regent, Magna Carta was re-issued again – in the form we recognise today and in an abbreviated 37 Chapters – but with one key difference.

This definitive text had Henry III’s “full and free consent”. Its acceptance placed the King himself under the law.

It was a good principle, but could only become reality if there were a body in place to enforce it and, three decades later, an embryo Parliament lifted the veil on what that body would ultimately be. However, true Parliamentary control of the Monarchy was still far off.

“Words mean”, said Humpty Dumpty to Alice, “just what I choose them to mean”. That is relevant to Magna Carta because it was the interpretation of the Charter that made it so powerful. The “free men” in King John’s Charter were freeholders of land, not the free and independent men and women of later ages.

As the late Law Lord, Tom Bingham put it: “the significance of Magna Carta lay, not only in what it actually said, but in what later generations claimed and believed it had said.”

Throughout the 14th and 16th Centuries, Magna Carta slumbered. Henry VIII ignored it completely when he made himself Head of the English Church.

But it was re-awoken in the early 17th Century, when Stuart Kings clashed with Parliament. When James VI of Scotland succeeded Queen Elizabeth I as James I of England, he held the view that “Monarchy is the supremest thing on earth … Kings exercise a manner of divine power on Earth”.

This was neither the first – nor the last – time that a Scottish leader expressed views that were alien to the English, and the great lawyer, Sir Edward Coke, was soon in conflict with James – who dismissed him as a Law Officer. Undeterred, Coke entered Parliament and, in 1628, infuriated James’s successor, Charles I, by invoking Magna Carta to bridle the power of the King. “Magna Carta owns no Sovereign” Coke argued, in provocatively chosen language, as he urged the supremacy of Common Law over the Royal Prerogative.

The stage was set for political confrontation. For some years, Charles attempted to rule without Parliament, but ran out of money. When he recalled Parliament – to raise funds to fight the Scots – Parliament refused to comply until the King reaffirmed Magna Carta and the Petition of Right. The stand-off deteriorated into a Civil War, begun by Charles but won by the Parliamentary Forces under Cromwell. It was followed by the trial and execution of the King.

Nearly forty years later, another Stuart King, James II, was deposed in the bloodless coup of the Glorious Revolution, and William and Mary of Orange were offered the throne – but with conditions. They were required to affirm a Bill of Rights that granted far greater power to Parliament.

This was the effective beginning of a constitutional Monarchy, and the end of absolute rule. From that moment, Parliament was supreme. And the justification cited was Magna Carta. It would be nice to believe that Stephen Langton foresaw this triumph 470 years earlier – but, sadly, I doubt it.

*****

Although Magna Carta was undeniably English by birth, its principles travelled the length and breadth of the English-speaking world – to India, Canada, New Zealand, Australia – and, of course, that great democracy – the United States.

When the first Colony was established in Virginia in 1606, James I granted the new settlers the same rights as were available in England, and the colonists embraced these liberties in their own domestic laws. In 1638, Maryland passed a Bill to recognise Magna Carta as part of the law of the Province.

Three years later, Massachusetts framed their “Bill of Liberties” in “resemblance to Magna Carta”. In 1668, the Carolinas legislated to regulate the grants of land in a Bill they characterised as “a species of Magna Carta”.

Thus, over a hundred years before the Declaration of Independence (1776), the colonial Legislatures had firmly embedded the principles of Magna Carta into American law.

These principles were enhanced after Independence. The Federal Constitution of 1789 embodied declarations on the rights of men that were variants of English law. As Lord Bryce observed a hundred years later: “there is little in the Constitution that is absolutely new. There is much that is as old as Magna Carta.” That holds true today.

As you enter the bronze doors of the US Supreme Court, you will see a depiction of King John signing Magna Carta; and, in the courtroom itself, a marble frieze commemorating the great lawmakers, where John is shown hugging Magna Carta, in the company of Napoleon and Justinian.

The men who drafted the US Bill of Rights deliberately echoed the language of Magna Carta. In 2003, Sandra Day O’Connor, the first woman ever to serve as a US Supreme Court Justice, paid tribute to its lasting influence – noting that:

In the last forty years the Court has cited Magna Carta in more than fifty written opinions. It has looked to concepts embodied in Magna Carta in important decisions that concern, for example, the prohibition of cruel and unusual punishment, the requirement that trial by jury be afforded in state criminal prosecutions, and the access of indigents to review of criminal convictions.”

* * * * *

How relevant is the Magna Carta today? It is rarely cited in legal action, although its derived law remains potent. And there are areas where its absence is striking and its writ has not run: extraordinary rendition, for example, and detention without trial in Guantanamo Bay. American courts ruled that normal circumstances could not apply in wartime – a contentious decision that many would question – myself included. Whatever crimes these prisoners may have committed, they deserve to be brought to trial and, if found guilty, punished: but to be imprisoned without trial cannot be acceptable.

Many, too, might be concerned at the modern level of surveillance which has grown dramatically to counter terrorist threats unforeseen by earlier generations. Much is justified by legitimate security concerns, but it is a trend that Parliaments should watch with care.

But I would argue that the Charter’s impact today goes far beyond the law. It can be seen in the attitudes and expectations of the English-speaking nations.

This evening, my focus is the UK and the US. As children of Magna Carta, we instinctively dislike over-mighty power – not least in our Governments. I lost an election in 1997 for many reasons, but one – repeatedly cited – is that we had been in Government for too long and the UK wasn’t a one-Party State. I agree with the sentiment – although I would have preferred for its implementation to have been deferred. Our two nations are suspicious of monopoly power. We have an affinity for the under-dog, for the plucky loser. Magna Carta is in our DNA – it is who we are.

And our expectations show a symbiotic relationship with the Charter. We require and expect our Laws to be fair. Our Courts to be impartial. We take for granted that we can mock and criticise the mightiest in the land without fear of reprisal. We believe we have ancient rights – freedom of speech, the right to own and pass on our assets, protection against the State. We assume all this as an ancient right, whilst acknowledging that such liberties are still not available in many other parts of the world.

Alexander the Great believed that Asians became slaves because they could not pronounce the word “No”. But we can and do: to Monarchs; to Presidents; to Governments; to Jacks-in-Office; to hostile armies – and so have we throughout our history.

Of course, the UK and US are not identical. Let me speak for a moment of my own country. As a nation we British are understated – until roused by threats or injustice – and we rarely speak of freedom, perhaps because we take it for granted.

Maybe we should speak of it more. Freedom – liberty – is essential to the individual if he is not to be crushed. It is enshrined in our every attitude. We know that – without the rule of law and free speech –despotism can reign. But, even in our own country which is, I believe, as free as any in the world, freedom is not universal. There is no freedom – no liberty of action – in poverty. There is little freedom in unemployment. They are both a blot on a free society and, if we do not seek to eliminate them, they become a blot on our conscience too.

And, on a lower level, we should beware lest independence and freedom is eaten away by pettifogging rules and too much control: we should look critically at regulation if we wish to ensure a free nation does not live in a Nanny State.

Are these sentiments due to Magna Carta? Or did Magna Carta come about because this is the unshakeable conviction of our people? We will never know the answer. But what I do know is that we should be proud we gave our laws and our concept of freedom to a large part of the world – and prouder still that they have adopted it.

These days I travel widely to every corner of the world. Many might be surprised at the respect and affection there is for our country based on our language, our democracy, our system of law and the perception that we are a fair and tolerant nation.

There is one current controversy which has faint echoes of the principal dispute over Magna Carta. That dispute – as I have set out – was between absolute Monarchy and Parliamentary supremacy. Today’s more minor dispute is between British Law and the rulings of the ECHR. It is a much misunderstood issue.

There is a strand of opinion in the UK that disowns logic and abandons consensus once the words “European Union” are mentioned: it is as though a red mist has descended, robbing intelligent minds of the ancient British genius for compromise.

So let me make clear that the ECHR has absolutely nothing to do with the European Union. This Court was established by a Convention on Human Rights, agreed in 1950, the drafting of which was guided by a Conservative lawyer and politician. Yet, I think it fair to say that, over recent years, the rulings of this Court have widened to an extent that has often upset Parliament, politicians, press and public in equal measure.

The Convention was designed to protect civil and political liberties, at a time when wartime violations were fresh in the memory and Communism – with its disregard for individual freedom – was a growing threat across much of Europe. It was signed by 47 European nations and reflected the terms of the Universal Declaration of Human Rights – itself described by Eleanor Roosevelt as a “Magna Carta for all mankind”.

The Convention was drafted in broad terms to cover such issues as the right to life and liberty; to fair trial; to freedom of expression; to the end of torture – and many rights long familiar to our own way of life. It was incorporated into British Law in the Human Rights Act agreed by Parliament in 1998.

The Government wishes to replace the Human Rights Act with a “British Bill of Rights” that would replicate all the safeguards of the Convention, but leave its interpretation in the hands of British Courts. As a result, a clamour has arisen that the intention is to infringe existing human rights. If I thought that were so, I would be a strong opponent of the change. But it is not.

Human rights and liberties were protected in this country long before the Human Rights Act, and I have no doubt that will remain the position when the legislation is updated. The land that gave us Magna Carta will not turn its back on fundamental liberties. And the land that gave us a democratic Parliament is surely right to ensure that the will of Parliament is not misinterpreted.

The ECHR is a symbol; a potent symbol of the post-war settlement in Europe. In the world of politics, such symbols matter and we respect their power and significance. I expect consultation and compromise to settle this issue.

Let me give the final word to an Englishman, among the greatest we have known, born of an American mother.

Sir Winston Churchill wrote of Magna Carta:

“The underlying idea of the sovereignty of law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject, it is to this doctrine that appeal has again and again been made, and never, as yet, without success.”

Ted Heath began his career as a Whip in Churchill’s last Government. He would have agreed with Churchill’s analysis. He understood that Magna Carta framed our law, our Parliament, our history and our nature.

For that, Britain, America and much of the world can all be grateful.

July 23, 2015

Mark Carney: Magna Carta and the Bank of England

16 July, ‘From Lincoln to Lothbury: Magna Carta and the Bank of England’, Lincoln Cathedral. Mark Carney, Governor of the Bank of England, Speaker.

The lecture below was part of the Lincoln Magna Carta Lecture Series:
Click here to read the lecture at the bankofengland.co.uk.

A burst of inflation. A crisis in the public finances. Public sector bailouts. Infighting in Europe. Not eight years ago, but eight hundred. That was the economic context for the striking of Magna Carta.

To many today, Magna Carta is a document of profound, almost mythical, significance. It is seen as the cornerstone of the United Kingdom’s constitutional arrangements and as a blueprint for the constitutions of many other nations, including the United States. It is credited with establishing the foundations of parliamentary democracy, creating a framework for the rule of law, protecting individual liberty, defending the rights of the innocent, and limiting the role of the State.

It is undoubtedly true that Magna Carta – or more correctly the idea of Magna Carta – has played a central role in British political development over the centuries, not least as a banner under which those seeking liberty from oppression have rallied. But many modern scholars argue that its significance, in and of itself, has been overstated. They characterise Magna Carta as a pragmatic political document that was a product of its time, including the difficult economic circumstances that then prevailed.

As usual with historical arguments, the answer lies somewhere in between. In what follows, I will spend a few moments on the pragmatic element not only because it plays to my comparative advantage as an economist but also because it ultimately underscores the foundational character of the document itself. The enduring legacy of Magna Carta is how its strictures on unconstrained power are reflected in our systems of political and economic governance.

I will conclude that both the constitutional and pragmatic perspectives are relevant to modern central banking and the current conduct of monetary policy. Specifically, the costs of inflation were among the key economic catalysts of Magna Carta, and its core constitutional legacy – namely the importance of delegated authority, with clear lines of public accountability – is at the heart of the Bank of England’s institutional arrangements. In the spirit of Magna Carta, the Bank of England has been given a great responsibility: to deliver monetary stability for the good of the people of the United Kingdom. Our goal, the 2 per cent inflation target, is set by the Government, and we operate under constrained discretion in its pursuit.

1. The economic and political context: Where did Magna Carta come from?
The political background is one of nearly constant conflict both within the dysfunctional ‘English’ monarchical family, as well as with France over control of Normandy and the rest of Henry II’s continental empire.

The England of the 1200s was far from a unitary state. Most matters were administered by local barons, with the King acting as an arbiter in the event of a dispute. The relationship between local (baronial) and central (monarchical) authority was much less deferential, and much more arms-length, than it is today. Indeed, the early Plantagenet Kings of England spent most of their time living at home in Normandy or Anjou, allowing the English barons a considerable degree of autonomy. It was only after King John lost Normandy to the French in 1204 that the King resided full-time in England, breathing down the necks of the barons, who did not much like the closer observation of their activities, and the eyeing of their stockpiles of silver that this proximity entailed.

The relationship between the barons and King John broke down in part because of unsustainable public finances, with John imposing an intolerably heavy and arbitrary tax burden in order to pay for royal extravagance, infighting, and wars with the French. The royal judicial system, whose tendrils extended ever deeper into the barons’ lives, was used to extort cash and as an instrument of royal control, rather than to ensure ‘justice’. What lay behind such unsustainable public finances?

First, and most obviously, the need to pay for constant military protection for the Normandy estates created what modern-day macroeconomists would think of as an enormous structural deficit. If John had let his expulsion from the continent be the end of the matter this financial burden would have extinguished itself. But he did not. His folly was a series of vain attempts to re-conquer Normandy, efforts which finally ended on the eve of Magna Carta.

Second, the monarchic finances had taken a colossal hit in 1193 because of the need to fund a gigantic public sector bailout. Richard I had managed to get himself caught in Germany on his way back from the Holy Land and was held to ransom for £66,000 in silver. Being ‘Too Big To Jail’, the equivalent of two to three times annual crown income was needed to bail him out. In comparison, the government’s peak cash support to UK banks in 2007-2010 amounted to a trifling one-quarter of annual UK government revenues.

For an excellent summary, see Vincent, N (2012), Magna Carta: a very short introduction, Oxford University Press. His allies were finally defeated in 1214 at the Battle of Bouvines, which ended the 1202-1214 Anglo-French War. This would have been bad enough on its own. What was even worse was that it had come only five years after the collection of the ‘Saladin Tithe’, a windfall tax of a similar amount, in order to pay for a campaign to wrestle Jerusalem out of the hands of Salahuddin Ayubi, who had captured it in 1187. That cost the barons one-tenth of all their revenues and movable property.

Third, the need to raise additional cash for the public finances was made much more problematic by the strain of inflation, which accelerated in the early years of the 13th century. The problem was that a large proportion of regular crown income came in the form of ‘farms’, which were fixed rental payments for leases to use the King’s land for agriculture. These farms were fixed by custom in nominal terms, whereas the King’s expenditures were not. The King’s finances were unhedged.

In fairness to the monarchy, there was not an enormous amount that could be done about this. There was obviously no CPI(H) to which the leasehold rents could be indexed. The UK’s statistical challenges have a long history. The preferred way of hedging the risk was to kick the leaseholders off the land, and bring it into direct demesne management. This is what the barons themselves had been doing with their own land holdings. By taking it into demesne control, instead of receiving a fixed nominal rent, the lord of the manor could take receipt of the real output of the land, which could be consumed, traded, or sold for silver at the going spot
price. The consequence was that the richer the baron, the more land he had to exploit, and the greater his potential profits.

The effect was to create a massively wealthy elite of oligarchs, now breaking free both of the middling ranks of the gentry at one end, and of the hard-pressed King (or public sector) at the other. In all of this, the option of demesne management was infeasible for the King, likely because it would have involved destabilising relations with the administrative class of ‘sheriffs’ and other royal officials upon whom the King’s political stability depended.

Causes of the inflation
Forget royal infighting, wars or the whiff of revolution, it is inflation that really sets the pulses of central bankers racing. And for good reason because closer inspection suggests that inflation may have been a significant catalyst to Magna Carta.

Latimer (2001) suggests that the inflation was concentrated in the first six years or so of the thirteenth century. See Latimer, P (2001), “The English inflation of 1180-1220 reconsidered”, Past and Present, No. 171, pages 3-29. Harvey, P. D. A., (1973), “The English inflation of 1180-1220”, Past and Present, No. 61, pages 3-30.

Given the countless other abuses of authority that were going on at the time, one wonders why it was so problematic for the rents
simply to be ‘renegotiated’ periodically. In part, custom dictated that this was not the done thing. In part, the problem lay with the ‘sheriffs’ in each of England’s counties. They were responsible for collecting the fixed farms from the King’s assets. In normal years, they made an enormous profit, paying only a small fixed farm to the King, yet raking in a great deal more in terms of the real income of the counties. They were accustomed to keeping this surplus. Any attempt to reform this system, by reducing the imbalance between real income and fixed farm threatened to destabilise relations between the King and the vitally significant administrative class of sheriffs and other royal officials upon whom the King’s political stability depended. As a result, the Kings’ preference was to find other ways of raising the cash.

Historians estimate that prices were rising sharply in the early 1200s. The prices of agricultural goods, including wheat and oxen, probably doubled in that period. Evidence suggests that prices of linen, wax, lead and even palfreys – the Toyota Prius of medieval horses – were also rising rapidly. Wages were rising as well – and to a greater extent than could have just been the consequence of medieval real-wage resistance. King John was paying his knights almost three times as much as Henry II (even though they weren’t as productive on the battlefield). The daily rate for foot-soldiers had doubled. And limited evidence suggests the wages of skilled labourers on the crown estates probably increased by a similar proportion.

With pay growth approaching 20% a year, wages really were fizzing! The underlying causes of this inflation are debated among historians, but the most convincing argument is that the inflation was a monetary one, albeit with a twist. Not surprisingly, the quantitative information on the thirteenth century money supply is of very poor quality, imputed, as it has been, from archaeological finds of cash hoards.11

Latimer notes that “…between the middle of the twelfth century and the middle of the thirteenth century there was an enormous increase in the quantity of silver coins in England.” As well as the possibility of a general increase in the European silver supply (especially with the opening up of the Harz silver mines in eastern Germany), it is likely that silver inflows to England in particular were boosted as the counterpart to a sizeable private trade surplus – probably resulting, especially, from the success of the wool trade with Flanders. Over several decades, these silver inflows were likely to have much more than offset the ‘public sector deficit’ as silver leaked out to pay for the protection of Normandy as well as the occasional trip to the Holy Land. As a result, the balance of payments was probably in surplus for years, with the consequent increase in the silver money supply going unsterilised. Even to a thirteenth century Englishman, global monetary conditions mattered. Would Britain’s constitutional history have been different had King John lamented: A Central Bank! A Central Bank! My Kingdom for a Central Bank!?

He needed one because other factors reinforced monetary developments, including the usual suspect – financial innovation. Specifically, developments in the common law made land an increasingly liquid asset, and therefore one capable for the first time of being used as a store of wealth. This set a medieval financial accelerator in train (about 750 years before Ben Bernanke coined the term) by providing an alternative to storing one’s wealth in silver coin (prone to being whisked away by the King). This led to a reduction in the demand for silver money balances. An increase in money velocity would have followed and with it, all else being equal, price inflation until the transactions demand for silver had risen sufficiently to equal its supply. At the very least, the existence of an alternative store of wealth provided an environment in which money velocity could take off, were it to be nudged in that direction. One possible nudge was the anticipation of the re-coinage of 1204.14 Re-coinages were good for the King
because he benefitted from the seigniorage of the re-minting fee. They were bad for cash holders both because of the re-minting fee and because they had to exchange their clipped coins for what they were actually worth, rather than their face value (a medieval haircut – some of which were appalling). Consequently, there was a strong incentive not to be the one holding the old-issue coins when the music stopped.

So to sum up: a fiscal squeeze exacerbated by accelerating inflation, combined with monarchical ambition and incompetence to stretch and then break relations with the barons.

2. Constitutional significance
In that context, Magna Carta was a desperate (and probably disingenuous) attempt at a peace treaty that failed almost immediately.
Brokered by the Church, and issued by King John in June 1215, the Charter sought to placate the disgruntled barons. It is doubtful that John ever intended to uphold his side of the bargain, with all the constraints on his authority that this implied. Indeed, within a few months of its agreement, by the end of August 1215, John had convinced Pope Innocent III to annul the Charter on the grounds that it had been issued under duress.16 The 1215 Magna Carta was never enacted, and England slipped into the First
Barons’ War.

Charters of this type were not uncommon at that time. It had been fairly routine, in fact, for English kings to attempt to curry favour with the nobles upon whom the stability of their realm depended by rubbishing the reputations of their predecessors and issuing ‘coronation charters’ that demonstrated how virtuous and peace-loving they were by comparison. It was also fairly routine for kings to renege on the promises in those charters, creating fertile ground to begin the cycle anew. What was novel about Magna Carta was that: (a) it was longer and more detailed than its predecessors; and (b) it was issued not at John’s coronation, but under compulsion from a true political opposition, sixteen years into his reign and evidentially too late to serve its purpose. This brings a second observation. Obnoxious and tyrannical as he might have been, King John was not solely to blame for the aristocratic discontent that led to Magna Carta. His predecessors had reneged on their promises, mismanaged the realm and imperilled its finances. John’s administrative and military incompetence were merely the straws that broke the camel’s back.

If Magna Carta was such a product of its time, how did it become to be so venerated? And once we cut through the legend, what is its significance for economic governance today? The revisionist interpretation of Magna Carta as a timeless statement of natural rights and liberties became imprinted onto the minds of the English-speaking world only in the 17th century. In large part, this was due to
the work of Edward Coke. As well as being an enormously influential jurist, Coke was also the author of popular English legal textbooks that exported his views around the world. Coke resurrected the long-forgotten Magna Carta from 400 years of obscurity by appealing to its spirit in order to resist the absolutist tendencies of the Stuart Kings James I and his son Charles I – themselves inspired by the continental European model of monarchic divine-right. The Charter, Coke argued, could trace its lineage from an ancient constitution that harked back not just to the time of pre-Norman King Edward the Confessor, but to King Arthur himself (!): an ancient constitution that was now being imperilled – and with it the Englishman’s rightful way of life – by the tyrannical behaviour of the Stuarts. Despite the efforts of Coke and others, Charles I’s rejection of all enterprise to constrain his authority led to the English Civil War and to the king’s beheading in 1649. Meanwhile, Coke’s unstoppable Magna Carta redux had been set in motion. In contradiction to their behaviour at home, James and Charles had been busily granting royal charters promising the liberties of Englishmen to the American colonists. Coke himself had been involved in the drafting of the first charter of the Virginia Company in 1606, and similar English liberties were extended in the charters of Massachusetts, Maryland, Connecticut, Rhode Island and Carolina over the next sixty years. Some have argued that references to Magna Carta, however irrelevant its provisions might by then have been, were used as a way of ‘drumming up’ New World settlers. To this day, 25 US States have extracts from Magna Carta on their statute books; a further 17 have the full text. Goodness knows how the latter intend to enforce the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” (Clause 33). Of course, sometimes American extraterritoriality literally knows no bounds.

Coke’s romantic resurrection of Magna Carta transformed it into part of the backdrop to the American Revolution, with his influence clearly evident in the drafting of the US Constitution.

***

We have seen how the economic forces and political developments of the time played a crucial part in the mounting hostilities between King John and the barons that led to Magna Carta and First Barons’ War. Given that background, it is not as shocking as it first seems that Magna Carta is very largely taken up with the parochial interests of the rich. It is dominated by three basic themes: taxes; abuses of the ‘judicial system’ with the aim of raising revenue; and the protection of the barons’ mercantile interests. Given how irrelevant those specific concerns now seem, it is hardly surprising that almost all of the Charter’s
clauses that survived the 1225 re-issue (and therefore made it into the law in the first place) have since been repealed. In fact, only four clauses of the original 66 remain. These stand out as different in character from the others. They are much more general, universal and timeless. They are:

– Clause 1: Freedom for the Church.
– Clause 13: Protection for the ‘ancient liberties’ of the City of London.
– Clause 39: No wrongful imprisonment. Perhaps the most famous clause. “No free man shall be seized
or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing
in any way, nor will we proceed with force against him, or send others to do so, except by the lawful
judgment of his equals or by the law of the land.”
– Clause 40: Justice is not for sale.

Added to that, the spirit of Clause 12 of the 1215 Magna Carta (dropped from all later reissues), that “no ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent…”, is clearly what would later become ‘no taxation without representation’: to establish a council (the embryonic embodiment of what would later become Parliament) to agree whatever new taxes the King might demand.

Whatever their purpose at the time, the more universal clauses that remain on the statute book certainly resonate today. They in effect encompass the idea of the rule of law and of due process as a means to ensure justice. It is tempting, therefore, to think of these clauses as being the enduring legacy of Magna Carta, while at the same time allowing ourselves to patronise the juxtaposition of these apparently fundamental principles alongside so much antiquated gibberish about fish-weirs, the obligation to construct
bridges, and the theft of wood for building castles.

This would, I think, be a mistake. The specificity of the clauses animates the general principles. It is because they are detailed and targeted at the concerns of the time that they are a genuine attempt to place a boundary on the authority of the King, rather than relying on vague platitudes. Magna Carta was nowhere near the first attempt to encapsulate ideas of justice and good government, nor was it the last. Indeed, it was a spectacularly unsuccessful attempt – and it was anyway concerned only with
the interests of a very small segment of society. But, largely because King John’s heirs were forced into a tight corner and therefore obliged to reissue the charter again and again after 1215 (in 1216, 1217, 1225, 1234, 1253, 1265, 1297 and 1300, to cite only the more famous reissues), it is Magna Carta that has become the icon of the principle that the exercise of authority requires permission from those subject to that authority – and that, once granted, this permission can just as easily be withdrawn. At its most idealised, Magna Carta makes clear that power derives from the people and constrains the authority of the state. The state can in turn devolve power – to regions – and to independent bodies. But these bodies can never forget from where their power came or to whom they are responsible. Their authority is constrained to that necessary to pursue specific objectives and they are accountable to the people for their performance.

3. Monetary policy outlook
The Bank’s current Monetary Policy framework embodies these principles. It wasn’t always the case. The Bank of England was brought into public ownership in 1946. As former Governor Eddie George remarked, for the half century that followed “the Bank operated under legislation which, remarkably, did not attempt to define our objectives or functions.” They were, instead, “assumed to carry over from [the Bank’s] earlier long history.” In that regard, the Bank’s ‘constitution’ resembled that of the United Kingdom more broadly, comprising a rich history of law, principle and convention.

Even the ‘fish weirs’ clause (33) can be read, in hindsight, as a protection both of the public good (in Roman law terms, res publica) and of the freedom of navigation: the same principle for the which the English entered into the Seven Years War of 1756-63, whose costs, in turn, brought about the American Revolution of 1776.

All changed with the passing of the Bank of England Act in 1998, which made specific “provision about the constitution, regulation, financial arrangements and functions of the Bank.” The Act brought great clarity to the Bank’s responsibilities and granted independence to the Bank for the operation of monetary policy. In delegating authority to an independent body in this way, the Act ensured the Bank would operate under what Mervyn King described as ‘constrained’ rather than ‘unfettered’ discretion. The Bank would be accountable to Parliament for operating the instruments of monetary policy to achieve the objectives of monetary policy,
which would be determined by the Government.

The operational independence of the Bank of England is an example of power flowing from the people via Parliament within carefully circumscribed limits. Independence in turn demands accountability in order that the Bank commands the legitimacy it needs to fulfil its mission. By publishing its analysis, giving testimony, and delivering speeches, the Bank explains how it is exercising its powers to achieve its clearly defined policy Remits.

To illustrate these points, I will conclude with some reflections on monetary policy. Our objective, given to us by Parliament, is to maintain price stability and, subject to that, to support the economic policy of Her Majesty’s Government, including its objectives for growth and employment. Our Remit builds in important accountability and transparency mechanisms. One of which is the requirement for the Governor to write an open letter to the Chancellor if inflation moves away from its 2 per cent target by more than one percentage point.

Inflation developments
I am in the middle of a likely sequence of such open letters – I have another one due next month – on account of the record low inflation the UK is experiencing this year, currently at zero per cent. Such letters must explain, among other things, why inflation has deviated from target and what policy actions the Monetary Policy Committee (MPC) is taking in response.

The ‘why’ is straightforward. The bulk of the shortfall of inflation below target can be explained by the sharp fall in the prices of commodities and other imported goods since last year. Of these, the single most important factor has been the steep drop in energy prices globally. The rise in the value of sterling has also played an important role in lowering non-energy import prices, which have fallen over the past twelve months. The sum total of these effects has been to drag inflation below target by around
1½ percentage points. This temporary period of below-target inflation has provided a welcome boost to real household income.

Inflation looking ahead
The MPC’s intention is to return inflation to target in a sustainable manner within two years. That means setting Bank Rate to eliminate the remaining slack in the economy, bringing about the sustained increase in costs necessary to achieve overall inflation of 2%.

I expect that this will involve raising Bank Rate over the next three years from its current all-time low of ½ per cent. The need for Bank Rate to rise reflects the momentum in the economy and a gradual firming of underlying inflationary pressures – a firming that will become more apparent as the effects of past commodity price falls drop out of the annual inflation rate around the end of the year. It also reflects the lags in monetary policy, given that the peak impact on inflation of a given adjustment in interest rates is likely to materialise around 18-24 months after the change.

As the economy evolves, different factors will become worthy of particular attention in informing the timing, pace and degree of likely Bank Rate increases. At the current juncture, three stand out. First are the prospects that sustained momentum in economic activity will wring out any remaining slack. This will require sustained growth above its past average of around 0.6 per cent per quarter.
Even though the current recovery has been the slowest since the Great Depression, taking around 1½ years longer to regain lost ground than it did following the recession of the 1930s, the signs are encouraging. Looking through the blip in the first quarter, the economy has now been growing above trend for a year and unemployment has fallen sharply over the past two. Consumer confidence is around its highest level for over a decade. Businesses investment intentions are solid. Momentum in the housing market is showing
signs of returning. Survey data point to continued momentum in real activity over the remainder of this year.

To be sure, the international risks to the growth outlook remain. The situation in Greece is fluid, and the on-going slowdown in China could prove more significant. But on balance we can expect the global economy to proceed at a solid, not spectacular, pace.
Second, domestic costs need to continue to firm. After a period of particularly weak wage growth, which reflected a marked expansion in labour supply that is now largely absorbed, wage growth is picking up.

Based on average quarterly GDP growth since 1993. The impact of Buy to Let changes will be examined in August Inflation Report. In our May projections, the MPC expected PPP-weighted worth growth of 3 ¼ per cent in 2015 and 3 ¾ per cent in 2016 and 2017, just shy of the pre-crisis average of around 4 per cent.

I discussed labour supply developments in the UK in detail last autumn. (See Carney, M (2014), Speech to the Trades Union Congress
Annual Conference, 9th September 2014.)

The recent growth in wages has been stronger than we had expected in May, though most of the upside news was in bonuses, which are a less reliable guide to firms’ future labour costs. At a minimum, when taken together with survey indicators that continue to point to solid pay growth for new recruits, recent data give welcome reassurance that the risks associated with a deflationary mindset in the labour market have likely fallen significantly.

Further positive wage developments should be supported by a continued tightening in the labour market. Job-to-job flows remain around post-crisis highs and the ratio of vacancies to unemployment is now back to its pre-crisis average. However, what matters for inflation is not wage growth in isolation but wage growth relative to productivity. Put simply, firms are less likely to raise their prices if higher wages reflect more output per hour worked. Along with faster wage growth, there have been signs of faster productivity growth since the turn of the year. This may well mean firms’ unit labour costs have not picked up quite to the degree we had expected in our May Inflation Report. It’s too early to be definitive. Weighing past disappointments and recent indications of a pick-up, it is prudent to recognise that two-sided risks to productivity growth remain. What is clear is that to return inflation to target, growth in labour costs must pick up further from their current rate of less than one per cent. The extent needed depends on what is happening to other costs. In the decade prior to the crisis, labour costs grew by around 2½ per cent each year on average, with wages and salaries growing at around 4¾ per cent and productivity at 2¼ per cent. Inflation averaged 2 per cent, however, in part because import prices rose only by around ¼ per cent each year at the same time. The possibility that history might repeat itself points to a third important consideration: the need to monitor developments in firms’ costs other than labour. The sum of these is evident in so-called ‘core’ inflation, which are measures of prices that strip out the most volatile determinants of inflation, like energy prices, revealing more persistent trends. In an open economy like the United Kingdom’s, those factors include import prices, which are affected by movements in the value of sterling, and which, on past experience, cantake a considerable time to pass through to core inflation.

Unlike regular pay, bonuses are closer in spirit to dividend payments, being state-contingent disbursements of profits. That
observation may imply bonus payments are a useful cyclical indicator, although interpreting the data is potentially complicated by
changes in taxes that shift the incentive to pay bonuses over time. Accounting for the mis-measurement of clothing and footwear prices, which existed until 2010 and biased measured annual CPI inflation downwards by around 0.4 percentage points. See Bank of England (2011), Inflation Report, February, box on page 39. 28 One way to illustrate the impact of import prices is to consider measures of core inflation adjusted for import intensity. These measures suggest that the current rate of core inflation is being dragged down by import prices by around 1 percentage point. That is a sizeable effect, and reflects, in part, changes in the value of sterling. The core measure referred to here is CPI inflation excluding food, energy, education, alcohol, tobacco and VAT, and the measure adjusted for import prices weights each component of the core index by the inverse of its import intensity.

Not only are the effects sizeable, but, on past experience, they are potentially protracted. The impact of sterling’s 25% depreciation following the onset of the financial crisis on import prices was one factor that contributed to high inflation throughout 2008-12. The potential for these effects to be persistent highlights their relevance at the policy horizon.

Over the past few years, core inflation has been particularly subdued, and it remains less than one per cent. We need to see increases in core inflation to have a reasonable expectation that, in the absence of further shocks, overall CPI inflation will return to 2 per cent within the MPC’s stated objective of two years.

Policy strategy
Delivering the growth in activity, the rise in domestic costs and the firming in core inflation measures necessary to return inflation to target requires monetary policy to be set appropriately both now and prospectively. In this regard, one concern has been the constraint imposed on monetary policy by the effective lower bound on policy rates.

In my view, with the healing of the financial sector and the lessening of some of the headwinds facing the economy, that concern has become less pressing with the passage of time. As I made clear in my first open letter in February, were downside risks to inflation to materialise the MPC could decide either to expand the Asset Purchase Facility or to cut Bank Rate further towards zero from its current level of ½ per cent.29 In the current circumstances there is no need to wait to raise rates because of a risk management approach and run the risk of inflation overshooting target.

At the same time, the timing and pace of prospective interest rate increases need to be put into perspective. Headwinds to growth and inflation remain. Growth in the parts of the global economy that matter most to the UK is running ¾ percentage points below its historic average. Sterling has appreciated around 18 per cent over the past two years and around 7 per cent since the turn of the year. This will exert a drag on inflation both through lowering import costs and by lowering world demand for UK goods. UK fiscal policy is about to tighten significantly. The average annual reduction in the cyclically-adjusted budget deficit is projected by the
OBR to increase from around ½ per cent of GDP over the past two years to around 1 per cent of GDP over the next two – and the IMF expects the UK to undergo the largest fiscal adjustment of any major advanced economy over the next five years.

Taken together, these factors suggest that the ‘equilibrium’ real rate of interest – the rate needed to keep the economy operating at potential and inflation on target – which was sharply negative during the crisis, will continue to be lower than on average in the past. It also seems likely that the equilibrium interest rate will move only slowly back up towards historically more ‘normal’ levels. Everything else equal, that suggests a prospective tightening cycle that, once it starts, will be longer and shallower than those of the past. In other words, we expect Bank Rate increases to be gradual, and limited to a level below past averages.
What does that actually mean?

To paraphrase one of my predecessors at the Bank of Canada, Gerry Bouey, we didn’t abandon the lower bound; the lower bound
abandoned us. (See Office for Budget Responsibility (2015), Economic and Fiscal Outlook, July; and IMF (2015), World Economic Outlook.)

The Bank of England is around half a millennium younger than Magna Carta. To put the limited and gradual expectation in historical context, short term interest rates have averaged around 4½ per cent since around the Bank’s inception three centuries ago, the same average as during the pre-crisis period when inflation was at target. The average pace of tightening since the adoption of inflation targeting in 1992 was around 50 basis points per quarter.

It would not seem unreasonable to me to expect that once normalisation begins, interest rate increases would proceed slowly and rise to a level in the medium term that is perhaps about half as high as historical averages. In my view, the decision as to when to start such a process of adjustment will likely come into sharper relief around the turn of this year.

That said, the path is much more important than the precise timing of the first rate increase. And I am conscious of several important considerations which mean the actual path almost certainly will not be mechanical, linear or pre-determined. First and foremost, shocks to the economy could easily adjust the timing and magnitude of interest rate increases. Second, the largest cumulative tightening in the UK since inflation targeting was adopted was 1 ½ percentage points, compared to an average cycle of 3 percentage points for the US Federal Reserve over the same period. This likely reflects in part the greater sensitivity of
UK household balances sheets in the medium term to floating interest rates, something that could be particularly relevant in our still heavily indebted post-crisis economy. Over a half of UK mortgagors would pay higher rates in a year’s time, and close to three-quarters of mortgagors in two years’ time, were interest rates to evolve according to current market rate expectations. That is in stark contrast to the US, where even over a two-year period, less than 10 per cent mortgages would be affected directly by a change in rates. We will learn more about the importance of these sensitivities as interest rates increase. Third, developments in
the exchange rate have been important for UK inflation and activity, and in particular we have experienced persistent exchange rate pass-through to headline inflation. This risk is particularly relevant at present when the monetary policy stance of our largest trading partner is diverging with ours. Most fundamentally, there are broader macroeconomic considerations, particularly the UK’s large external imbalances. With the largest current account deficit in the advanced world, the right policy mix leans towards
tighter fiscal, more accommodative monetary and tighter macroprudential policies.

Given these considerations, the MPC will have to feel its way as it goes, monitoring a wide range of indicators and adjusting the pace and degree of Bank Rate as it learns about the effects of higher interest rates on the economy. There is, in fact, a wide distribution of possible outcomes around any expected path for Bank Rate, reflecting the inevitability that the economy will be buffeted by shocks and that monetary policy will have to adjust accordingly.

After all, as the story of Magna Carta shows, history rarely proceeds in a straight line… why should monetary
policy?

June 14, 2015

King John: the most evil monarch in Britain’s history

The Telegraph, Sunday 14th June
By Marc Morris.
Click here to read the original article.

Tomorrow, you can hardly have failed to notice, marks the 800th anniversary of Magna Carta, the document famously issued by King John at Runnymede on June 15, 1215. Most people are understandably a little hazy about the charter’s contents (it runs to 63 clauses and over 4,000 words). But they are aware that it was a “good thing” – a significant step in the direction of the liberties we enjoy today.

At the same time, most people think of John himself as a “bad king”, not least because he crops up as the villain in the tales of Robin Hood. One academic recently described him on Radio 4 as “an absolute rotter”; another, less constrained, has summed him up as “a s—”.

How was it, then, that the bad king left us something so remarkably good in Magna Carta? Is it the case, some historians have asked, that we have King John all wrong? That he was actually not as bad as legend makes out?

The answer to this is an emphatic “No!” John was one of the worst kings – arguably the worst king – ever to sit on England’s throne. “A very bad man,” in the words of one contemporary chronicler, “brim-full of evil qualities.” Despite occasional attempts to rehabilitate him, his reputation among academics remains extremely poor.

John’s offences are almost too numerous to list. In the first place, he was treacherous: when his older brother, Richard the Lionheart, was away on crusade, John attempted to seize the throne by plotting with the king of France, Philip Augustus, prompting contemporaries to damn him as “a mad-headed youth” and “nature’s enemy”. He was also lecherous: several nobles are reported to have taken up arms against him because he had forced himself on their wives and daughters.

Most of all, John was shockingly cruel. In a chivalrous age, when aristocrats spared their enemies, capturing them rather than killing them, John preferred to do away with people by grisly means. On one occasion, for example, he ordered 22 captive knights to be taken to Corfe Castle in Dorset and starved to death. Another time he starved to death the wife and son of his former friend, William de Briouze. In 1203 he arranged the murder of his own nephew and rival for power, Arthur of Brittany.

John might have got away with such nefarious acts had he not also been politically incompetent. At the start of his reign in 1199, he inherited the greatest dominion in Europe — not just England and large parts of Wales and Ireland, but also the whole western half of France: Normandy, Brittany, Anjou and Aquitaine. Yet within five years, he had lost almost all these continental territories to Philip Augustus. Contemporaries put this down to a lack of boldness on John’s part, calling him “Soft-sword”, and he did indeed lack the necessary martial skill that his brother Richard had possessed in spades. “No man may trust him,” sang the troubadour poet Bertran de Born, “for his heart is soft and cowardly.”

King John’s loss of his continental inheritance was deeply shameful, and he was determined to win it back. To raise the massive armies and fleets this enterprise would require, he wrung unprecedented sums of money from England. Taxes were suddenly demanded on an almost annual basis. Nobles were charged gargantuan sums to inherit their lands. Royal justices imposed exorbitant fines for trifling offences. The lands of the Church were seized, and the Jews were imprisoned and tortured until they agreed to pay up. John’s reign saw the greatest financial exploitation of England since the Norman Conquest.

But it was all for nothing. When the king finally launched his long-planned continental campaign in 1214, it was a disaster. John, true to form, shied away from battle when challenged by French forces, and his allies in the north were defeated in a decisive clash with Philip Augustus. He returned to England that autumn with his treasury empty and his dreams of re-conquest in tatters.

With their tyrannical ruler over a barrel, his subjects demanded reform. John dodged their demands for six months, until in May 1215 they came out in open rebellion and seized London. With his capital held against him, the king was forced to negotiate, and obliged to make concessions when he met his critics the following month at Runnymede.

Such is the general background that led to Magna Carta, a charge-sheet aimed squarely at King John and his many acts of misgovernment. The king did not issue it willingly, but under pressure from his opponents and in the hope of buying time. As soon as the meeting at Runnymede had broken up, John wrote to the pope complaining that the charter had been exacted under duress, and the Pope obligingly declared it invalid. Within a few weeks both sides were again at war.

King John did not survive for much longer. Worn out by the exhaustion of fighting a losing war, he contracted dysentery in October 1216 and died a few days later at Newark Castle. Magna Carta, however, was unexpectedly resurrected, reissued by John’s supporters in the name of his nine-year-old son, the newly crowned Henry III. Its most contentious clauses, that allowed the barons to make war on the king should he transgress, were removed, but the bulk of the detail remained.

Today the detail is no longer relevant. What we now celebrate is the famous sentiment in the middle of the charter, which declares that a free man shall not be imprisoned, exiled, deprived of his property or otherwise destroyed simply because it is the king’s will. King John had indulged in precisely that sort of unjust behaviour, and his subjects had called him to account for it. This is how the “bad king” ended up leaving us something so good.

Marc Morris is the author of King John: Treachery, Tyranny and the Road to Magna Carta

It made us free: Melvyn Bragg on Magna Carta

The New Statesman, 12th June 2015
Written by Melvyn Bragg.
Click here to read the original article.

Parliamentary democracy, trial by jury or habeas corpus – it can be argued that all these flowed from this document.

Is it rather stupid and dangerous to take Magna Carta so much for granted, as many of us seem to do, and to think of this attitude as “very English”? Or would it be better to connect it with the present as resolutely as possible, to show the distance travelled in these past 800 years, the achievements despite the setbacks, its uniqueness? Perhaps to take our history too much for granted can be a way of diminishing both the past and the present, especially in this case.

At a recent public meeting about Magna Carta, a member of the platform panel, a well-known public intellectual, leaned forward and to a packed room pronounced with a world-weary confidence: “The fact is that Magna Carta was a squalid little deal.” A few sentences later he added: “Moreover, it did not mention women.” It is difficult to think of a more politically correct, less historically accurate and more impoverished view of history than this, and yet I was the only one who (publicly) protested.

David Carpenter, who has just finished writing a 600-page book on Magna Carta, said that it asserts “for the first time in world history a hugely important constitutional principle of the foundation of liberty, which is that the ruler is subject to the law”.

King John, who sealed (but did not sign; there is no evidence that he could write) Magna Carta appears to have been as the contemporary Benedictine monk Matthew Paris described him: “Foul as it is, hell itself is made fouler by the presence of John.” It has proved impossible to launder King John’s reputation. The barons and earls, the archbishop and bishops, men to a man, stopped a tyrant in his tracks; and after many close escapes since then the Big Charter helped create civilised society, and its journey goes on.

The charter spoke through the king to God and to the liberties of the Church. It enhanced the liberties of London, which the earls and barons had just captured. It bundled together a package of laws, most of which are of their time and have fallen off the page. Sadly for some, it said nothing about the rights of women, the welfare state, the trade unions or the euro.

Nor did it say anything about the right to parliamentary democracy, trial by jury or habeas corpus. But it can be argued that all these flowed from and were triggered by this document. And not only in this country, but as time went on, most powerfully in America, Australia, Canada, New Zealand and as a foundation stone in the constitution of India and elsewhere. After the Second World War, the UN set up the Universal Declaration of Human Rights, which Eleanor Roosevelt called a “Magna Carta for all mankind”.

Magna Carta has 63 clauses in abbreviated Latin. Two of them that are still on the statute book, numbers 39 and 40, could be said to have changed the way in which the free world has grown. “No free man shall be taken, or imprisoned, or disseised [his lands taken away], or outlawed, or exiled, or in any way ruined; nor will we go against him nor sin against him except by the lawful judgment of his peers, his equals and by the law of the land.” And, “To no one will we sell, to no one will we refuse or delay right or justice.” These two clauses have so far proved to be indestructible, though often defied. They came to apply to all men and then all women, and have elasticated their earliest purpose to become universal with a legendary, even mythical aura to them.

Soon after the treaty was sealed, King John broke his word. The pope, on his bidding, annulled the charter. This provoked the invasion of England (the first since the Conquest) by the son of the king of France. But after John’s death in 1216 the earls and barons booted out the French invader, rallied round his son and once more the charter was reissued. It went under the statute books in 1225 and was revived in one political crisis after another: 1253, 1267, 1297 . . . From the very beginning it was brandished in the local courts by peasants who saw it as their defence against tyranny.

The great lawyer Sir Edward Coke (1552-1634) brought it face to face with the Tudor and the Stuart autocracies. In the English civil wars its time of greatest influence was seen and branded on the English conscience. Sir William Blackstone took it up in the 18th century. Lord Woolf speaks to China on it today; and in the argument about 42-day detention in 2008, Magna Carta was headlined in some of our newspapers.

Magna Carta has become totemic. It is in the comedy of Tony Hancock, in the poetry of Kipling, never far from the front pages in a constitutional crisis. It was copied out by hand. Four copies are remaining and although one is badly damaged, there is not a blot on any of them. Those two clauses hit a nerve in societies all over the world. They have become sacred tablets.

The monuments at Runnymede, where it was signed, both modest, are funded by American lawyers. It is curious that just up the river at Windsor Castle, which King John made his base during the negotiations, we maintain one of the splendid palaces of monarchy – while downriver the ­English have erected a narrow road that belts through those meadows where thousands met for the treaty 800 years ago. And there’s an English tea shop. With a small car park.

How Magna Carta Went Viral

The Smithsonian Mag
By Linda Rodriguez McRobbie
First published 12th June – Click here to read the original article.

In a world before the printing press, how did news of the famous document make the rounds?

In November of last year, a 13th-century copy of Magna Carta went for a drive.

The document—a large, nearly square piece of parchment covered in dense, brownish Latin legalese and bearing a dark green wax seal attached to the bottom with cord—rolled around the City of London in a red and gold horse-drawn coach built for Edward VII. A small camera was fitted to the coach’s ceiling to live-stream the document on its journey. Magna Carta toured London’s financial heart in the company of a Chinese dragon, people in fish costumes riding segways, a Viking ship, a group of Maasai dancers, and Napoleon Bonaparte. It was not, as you might imagine, how a copy of Magna Carta would have traveled in 1215, the year of its first sealing.

The copy’s public appearance was part of the Lord Mayor’s Show, the annual parade celebrating the installation of the Lord Mayor of the City of London in office (incidentally, the first Lord Mayor’s Show also took place in 1215). But the real occasion for the outing was as a reminder that the upcoming year would be an important one: 2015, the 800th anniversary of a document celebrated as the keystone of modern democracy, a symbol of the inalienable rights of humankind and the spiritual ancestor of the United States Constitution and the 1948 Universal Declaration of Human Rights.

To be clear, the copy of Magna Carta that took a drive around the City of London last year dates from 1297, the year it was re-issued and sealed by King Edward I. It is not an “original”; it’s not even based on an original, but instead is a re-issuing of a 1225 version, itself a reissue of a 1217 version, which was again a reissue of a 1216 version. That it is a copy of a copy of a copy speaks to how Magna Carta evolved from the practical resolution of a civil emergency into the totemic enshrinement of liberty that it is today. And it speaks to how Magna Carta went, for lack of a better term, viral.

The story of how Magna Carta was communicated is tied up in how it came to be. King John, one of the great, mustache-twirling villains of British history, and a pack of angry barons, rebels whose main coup was taking control of London, spent June 10 through June 19, 1215 in tense negotiation at the Thames-side meadow of Runnymede. A settlement was reached, and John’s oath to uphold it was given in exchange for the barons’ pledge of allegiance.

This settlement was quickly issued as a royal charter, a proclamation by the king; most of its 63 clauses dealt with grievances about his abuse of feudal custom and detailed actions to curtail it. John, who’d lost a lot of money fighting unsuccessful wars in France, had been using his feudal rights to extort money from his nobles, and when they couldn’t pay, he seized their land and took their family members hostage.

Buried among the stipulations regarding the removal of fish-weirs from the Thames and specifying the rights of wealthy widows were several clauses that would have centuries-long relevance, though no one could have known that at the time. These guaranteed the Church the freedom to handle its business without interference from the throne; that no free man could be imprisoned or outlawed except by the lawful judgment of his equals; and that the right to justice could not be sold, denied or delayed. It wasn’t, as the myth of Magna Carta might imply, the first time that these things were recorded—England had been an established political entity since well before the Norman Conquest in 1066, with laws both customary and written. Rather, Magna Carta represented the first time that they’d been outlined in conjunction with the implicit declaration that the king himself was subject to these laws. Big news—but how, in the absence of a printing press, telegraph, 24-hour news cycle or the Internet, did anyone hear about it?

The answer is murky. What happened at Runnymede is unclear beyond the broad strokes (furious barons in full armor, king in a tight corner), although John’s showdown with his barons probably didn’t include an official Magna Carta document as we might think of it. And it certainly wouldn’t have concluded with him dramatically impressing his seal on anything; this was not a moment for theater, whatever later historians with overheated imaginations might want to believe.

“I think the main thing that the general public will assume that when they go to see Magna Carta is that they think they’re seeing something that was on the isle of Runnymede or that the king signed or sealed and everybody looked, and that is almost certainly not the case,” explained Tessa Webber, a lecturer in palaeography at Cambridge. It is more likely that a draft version of the text hashed out during negotiations, both overt and covert, in the previous weeks and months, was read out to the assembled parties. Once John swore his oath, the 63 clauses would have been pulled together in a charter, not yet called Magna Carta (“Great Charter”), but the “Charter of Liberties”. Who actually wrote the first text is unknown, but some evidence points to the Archbishop of Canterbury, Stephen Langton, one of the architects of the Runnymede negotiations. This text was then copied out in heavily abbreviated Medieval Latin on parchment by trained scribes of the royal chancery, the king’s records and communications office. These “engrossments”, as they’re called, were then affixed with the King’s Great Seal, the physical representation of his authority, and sent out via royal messengers. Simple enough, right?

“When I’m trying to envision what happens in 1215, it’s not like creating one single document. It’s more like sending an email to multiple recipients, and then it gets copied again, or cut and pasted,” said Julian Harrison, co-curator of the British Library’s major exhibition on Magna Carta. Except, this was a message that needed to be copied out by hand by a team of specialists turning around on a tight schedule, that could travel only as fast as a person on a horse could go, and that ultimately might not have even been understood by the very people who needed to enact it. Less simple.

There are four surviving 1215 Magna Cartas, two held by the British Library and one each at Lincoln and Salisbury cathedrals. Each bears the seal date June 15, 1215, although it’s unclear whether they were actually in existence on that day; there was precedent for documents to bear the date they were orally agreed, not the date they were physically sealed. There could have been as many as 41 such copies, one for each shire, or county, and the Cinque Ports, the five ports on the coast of Kent and Sussex. Each of the remaining copies is in a different hand, and each is a different size and shape—one is landscape, two are portrait and one is almost square—written on sheepskin parchment.

Sheepskin was turned into parchment by soaking it in a strong lye solution, making it easier to scrape off the hair and flesh. Then the skin was stretched on a frame to dry under tension, scraped smooth with a crescent-shaped knife called a lunular and trimmed. The individual sheepskin dictates the shape and size of the parchment that results: “You deal with the sheep you’ve got,” says Webber. Given the length of the text—roughly 4,000 words of shorthand Medieval Latin, probably one of the longest documents produced to date—it’s unlikely that a single sheep could have produced more than one Magna Carta.

The ink was made by the same scribe who used it from a combination of water, mineral dust, gum arabic (as a binding agent) and powdered oak-gall, also known as oak-apple. Oak-gall is one of nature’s weirder treasures: When a gall wasp lays its eggs in the bark or on the leaves of an oak tree, the tree forms a smooth ball, like a boil, around the larvae. Inside the ball is tannic acid, which, when in combination with the other ingredients, seems to almost etch into the skin of the parchment. The black ink would have been applied with a quill, a flight feather taken from a goose or a swan. A right-handed scribe held a left wing feather, which curved into the hand; roughly every 10 lines of cramped, spidery scratching, he’d pause to trim the nib with a penknife and dip it into the ink.

Each copy had to be the work of a single scribe, to reduce the opportunity for and appearance of tampering. “You weren’t meant to have any erasures … You weren’t meant to leave any spaces,” Webber explains: Erasures could be construed as signs of forgery, while spaces could leave enough room to squeeze in something unwanted. This is not to say that mistakes weren’t made—the minor variations between the four 1215 Magna Cartas attest to that—but rather that this was precise, hand-cramping, eye-watering work (at least the scribes working on those Magna Cartas would have enjoyed a bit more daylight to work with, being that it was summer).

Once the copies were made, they were each sealed—not signed, which was not a tradition yet and in any case, there is no evidence that John could write—meaning that an impression of the King’s Great Seal was made in a lump of softened beeswax and resin and attached to the bottom of the document by cord. The king himself, however, didn’t do the honors; his Lord Chancellor, the Keeper of the Seal and one of the highest ranking officials in government, would have, or there would have even been yet another person, called a “spigurnel”, to actually apply the seal to the wax. “Royal administration is evolving and getting more complex,” Webber explains. “Titles are quite honorific, and that means you get a package of privileges … but the actual doing of things would have been done by someone less rewarded. This is bureaucracy, basically.” Only one of the four 1215 Magna Cartas still bears King John’s seal, although this copy was badly damaged by a fire in 1731; the wax melted and now resembles an ancient piece of chewed gum.

It’s unknown exactly how long it would have taken to produce a single copy of Magna Carta, but we do know that at least seven copies were ready for dissemination by June 24, 1215—there’s a memo from that date to the effect that two copies were to be delivered to the bishop of Lincoln, one to the bishop of Worcester, and four to the Archbishop of Canterbury’s steward. Another memo indicates that six more copies were sent out on July 22, again to the Archbishop of Canterbury’s steward. The relative haste with which they were produced and sent out gives some clue as to the document’s importance; regular charters could afford to languish a bit.

There was already a fairly robust system of communication between the Crown and the country dating back to at least the 10th century. This was largely in the form of the sealed writ, a kind of dashed-off memo that bore the king’s seal and would be sent off to the shires. Charters, although they were more formal documents, went the same way, carried by royal messengers via “established routes,” says Julia Barrow, director of the University of Leeds’ Institute for Medieval Studies. Any charter, and Magna Carta was no exception, could only travel as fast as the messenger carrying it. At maximum, that’s about 20 to 25 miles a day on horseback—roughly the distance from Runnymede to, say, the Tower of London (then in the hands of the rebel barons). If, as evidence suggests, a messenger changed mounts at staging posts, he could cover as much as 60 to 80 miles a day, and the copies could have traveled to the corners of the kingdom within a week, Barrow says.

Some did, but not all copies would have traveled via royal messenger moving posthaste. In the case of Lincoln Cathedral’s copy, for example, it went with Bishop Hugh of Wells, who had been at Runnymede and who reached Lincoln, a distance of some 140 miles, by June 30, 1215. Harrison is inclined to think that it took rather longer to spread the physical copies around the country: “It’s not instantaneous, it would have been over a period of weeks and months.” More importantly, perhaps, word about what had happened—”which essentially was that John lost,” Barrow says—would have traveled person-to-person probably faster than the physical documents.

However long it took, it seems likely that copies would have been put in the hands of the earls of the shires and bishops in county cathedrals; this is how other writs and royal charters were disseminated, and there’s no reason to believe Magna Carta was an exception. To publicize it, Magna Carta was probably read out at the cathedral and/or a shire court meeting held at a local great hall. (The shire courts, in existence since the Anglo-Saxon kings and made up of the local earl, bishop, and sheriff, were the primary locus of civic justice.) It’s difficult to picture what such a meeting would have looked like, when it would be held, who would be there and how many people from feudal England’s various strata would have attended. But we do know that the charter was probably read out in the vernacular French, Anglo-Norman, that was spoken by the social and political elite of the country—a surprising number of written translations into French from near the time of the sealing survive, including one that appears to have been intended to be read out at the county court of Hampshire.

“It probably would have taken a bit of time, it’s a long document,” says Barrow. Most towns in England boasted a fee-paying school by this time, a marked improvement on the days when the only schools were in monasteries; however, only a small percentage of the population could spare the money or the child labor, so readers remained a relatively small group and mostly male. Among the more likely to be able to read, however, were members of the aristocratic, religious and clerk classes.

Whether those hearing it would have understood what it was enacting in any language, however, is another question—though the document would have been fairly well known, it was probably haphazardly applied. Historian J.C. Holt, in his seminal 1992 analysis of Magna Carta, noted, “On the whole they knew very little of the contents of the Charter and this must have been equally true of those who were required to act on it in 1215. … As news of the settlement at Runnymede spread throughout the land, it can only have loosened the reins of government, encouraged attacks on local officials, tempted men into invading royal rights or resorting to self-help against both Crown and neighbour. The Charter must have started many a local war.”

It’s also unlikely that the “people” in a broader sense would have really learned much about Magna Carta. In one sense, Magna Carta would have only been minimally important to the vast majority of people living in England: “When it talks about ‘free men’, it’s not talking about free men in the modern sense, it’s talking about men at the top echelons of medieval society, because it’s a feudal society,” Harrison says. “In 1215, [Magna Carta] wouldn’t have had a significant bearing on people’s life.” Yet, in another sense, it did. It dealt with the practicalities of financial burden, which, though levied against the highest echelon, was also borne by the lowest; moreover, the civil war that occasioned it marked the first time in more than 40 years that war had touched the English countryside, so people would have cared—but they wouldn’t have cared that much.

Which is just as well, because in reality, John, a notorious oath-breaker, probably never intended to honor Magna Carta. “We kind of think that King John in way never expected people to read it, it was just a way of getting out of a tight political corner. He probably thought the Pope will annul it and he’ll live to fight another day, and it didn’t quite happen that way,” says Harrison. “I think he would have been horrified if he knew we’d be celebrating it today, I really do.”

However important and unprecedented Magna Carta was, its immediate impact was blunted by the fact that, at John’s request, Pope Innocent III issued a papal bull annulling it (and excommunicating the rebels) just 10 weeks after its sealing. He didn’t take much convincing: “The Pope thought it was an abomination,” says Harrison; he was horrified by what he perceived as the overthrow of the natural order of society and the violation of God’s law. That the copies of the charter weren’t destroyed is both something of a mystery and a miracle; after all, this was a failed treaty denounced by the highest power in the land. It’s possible they were just archived in cathedrals and forgotten; it makes sense, then, that three out of four of the surviving copies are confirmed cathedral copies. And as Webber pointed out, churches were the safest places for important archives: “They had stone buildings and cupboards and chests for keeping things safe … they had better resources than the secular institutions; and what religious institutions have is institutional continuity.”

Within just a few months of Runnymede, the barons openly rebelled again, plunging the country into a civil war worse than the one that had resulted in Magna Carta. The document probably would have been forgotten altogether if it hadn’t been for the fact that King John died of dysentery (reportedly after too many peaches and new cider) in October of 1216. John’s 9-year-old son, now King Henry III, was put under the guardianship of the canny knight, William Marshal, the Earl of Pembroke, John’s most loyal ally and one of the architects of the Magna Carta agreement. Marshal, acting as regent for the young king, issued a revised version of Magna Carta in November 1216 in an effort to bring the remaining rebel barons back into the fold and to “bind the kingdom together,” Barrow says. It didn’t entirely work, and Marshal re-issued it yet again, with some more revisions, in 1217. It was after this that the charter became known as Magna Carta.

“The idea of it was too important to be dropped,” explains Barrow. Indeed, Magna Carta’s significance in the legal, political and social landscape of England began to snowball. In 1225, Henry III, acting of his own “free will” but in response to his barons’ demands, sealed a revision of the charter that reduced the number of clauses to 37. This would not be the last time Henry III would use Magna Carta as a bargaining chip, a promise of good government in exchange for fealty: In his 56 years of rule, Henry promised more than 10 times to uphold the Great Charter. In 1265, in the midst of yet another baronial rebellion and under house arrest, Henry III reconfirmed Magna Carta and, crucially for the continued dissemination of the document, ordered that it be read out once a year in shire courts. The Church too played a major role in entrenching Magna Carta in society (not the least because the first clause guaranteed the Church’s freedom). From the 1250s, Magna Carta was being read out regularly in church in Latin, Anglo-Norman and, now, the English of the people; from 1253, anyone who broke any of the Charter’s terms faced excommunication.

Finally, in 1297, Edward I, that steel-fisted tyrant also called Longshanks, faced discontent from his increasingly fractious and financially taxed subjects. His chancellors reissued the 1225 version of the charter with his seal, ordered that it be read twice a year in cathedrals and, most significantly, added it to the Statute Rolls, enshrining it into English law. That any copies of the 1215 Magna Carta survive is even more remarkable given the number of times it was reissued—most copyholders would have destroyed the now meaningless older version when the new one was issued. It’s pure happenstance in some cases that copies were discovered; one probably apocryphal story goes that a copy of Magna Carta, one of those in the British Library, was discovered by a 17th-century London tailor just as he was about to cut it up for pattern-making paper.

Referenced in judicial proceedings as law, appealed to as a standard in political rhetoric, Magna Carta was becoming a kind of totem against the tyranny of the kings, not only for the political elite, but also for the layman. By the close of the 13th century, Magna Carta’s impact had spread well beyond its initial intent as the preservation of the rights of the baronial few (with a few bones thrown to the layfolk), and it was beginning to take on the gloss of the iconic document it became. By the 17th century, it was so deeply entrenched that a proposal to move the meeting of the court known as “The Bench” from its drafty corner of Westminster Hall was met with shocked disapproval from the Chief Justice, on the grounds that moving it even “the distance of an inch” would violate the charter. That reluctance to mess with an almost thoroughly outdated text meant that it wasn’t until the 19th and even 20th century that clauses like number 23—”No vill or man will be forced to build bridges at river banks except those who ought to do so by tradition and law”—were repealed. Now, only three-and-a-half clauses remain on the books.

And yet, everyone loves Magna Carta. Cambridge professor of history Sir Edward Shepherd Creasey noted with some amusement in a pamphlet titled “The Textbook of the Constitution”, “Magna Carta, in particular, is on everybody’s lips but in nobody’s hands; and, though perpetually talked of, is generally talked of in utter ignorance of its contents.” Creasey was writing in 1848, but he could have been speaking at virtually any time since 1215. (And today, it’s literally on lips, or at least the lips of the infants with parents so insufferable as to buy them Magna Carta pacifiers, just one of a bewildering array of Magna Carta-emblazoned tchotchkes.) As a standard of law, it’s not much. But as an idea, “it gets reinvented, and it proves to be highly adaptable,” Harrison says. “And unintentionally, it contains some really key statements that have really resonated over time.” So much so that now, Harrison says one of his colleagues frequently receives emails from people asking whether Magna Carta could help them get out of parking fines.

What traveled in messengers’ bags in 1215, what was read out in cathedrals with nearly the same sanctity as the Bible through the Middle Ages, what became a touchstone of human rights law through the Enlightenment and beyond wasn’t just the words of Magna Carta. It was what people believed they said. In his 1941 inauguration address, President Franklin Delano Roosevelt declared, “The democratic aspiration is no mere recent phase in human history … It was written in Magna Carta.”

Not exactly, but close enough.

LiberTeas update: A message from Mr Speaker

Sunday 14th June, 2015

In 2015 the Houses of Parliament, along with the people of the UK, are commemorating two important anniversaries: 750 years since the Simon de Montfort parliament (1265) and 800 years since the sealing of Magna Carta (1215).

Magna Carta embodies principles which have underpinned the establishment of Parliamentary democracy, as well as the legal system, in the UK and around the world. Montfort’s parliament of 1265 has a unique resonance as it built on these principles and included representatives chosen by both the towns and shires – something that ultimately paved the way for the emergence of the House of Commons.

Parliament in the Making is a year-long programme that brings these anniversaries to life. Our ambition is to develop further awareness and understanding of the UK’s democratic heritage and, in doing so, to encourage the public to reflect on our past and to focus on our future. Through this programme we have developed a range of cultural, educational and ceremonial events and activities of which LiberTeas is one.

I am delighted that you are joining us on this unique day, when people all across the UK and in fact, around the world, are stopping to take a moment to celebrate, debate and reflect on their rights and freedoms.

It is a human trait to take things we are used to for granted. When we ponder the question of who to vote for, or how to dress, or what we say and to whom, we seldom stop and think that underpinning our ability to make freely these choices are the hard won liberties of our predecessors. Gathering together, as we are this weekend, to take tea in the name of liberty is in itself a freedom we should not take for granted.

The rights and freedoms that we are celebrating have been achieved with difficulty, often at the cost of much blood and human suffering. They are not, and never will be, perfect. Not everyone will always agree on how liberty in its ideal essence should translate into a practical realisation. However, the history of the world is a lesson that no society, even one apparently secure in its democratic rights, can afford to believe that those rights cannot be taken away, and often with greater ease than the manner in which they were won. However, as we mark the anniversary of the document which started the journey to these rights and freedoms it feels that it has never been more appropriate, however un-British it may be, to congratulate ourselves on the democracy that we have achieved over the past 800 years.

Wishing you all a very enjoyable and meaningful LiberTeas!

Yours sincerely,

Rt Hon John Bercow MP
Speaker of the House of Commons

June 7, 2015

Magna Carta: The troubled journey to an independent judiciary.

The Independent, Sunday 7th June.
Written by Will Gore.
Click here to read the article as it appeared on the independent.co.uk

In popular perception the Middle Ages was a time of lawlessness and cruelty. And to a degree, that characterisation holds true. Crusades abroad, ill-disciplined governance at home, England in the early thirteenth century was not exactly enlightened.

The creation of Magna Carta in 1215 is all the more remarkable against such a backdrop. An unpopular king brought to heel by a written agreement sounds much too good to be true – and it was, in the short-term, with peaceable discussions giving way to civil war within a matter of months.

Nevertheless, the legacy of the charter signed by King John and the barons at Runnymede 800 years ago has been compelling, both in this country and beyond. The original agreement may not have protected rights and freedoms in the detailed way which modern-day myth occasionally suggests, but it undoubtedly set Britain on a road towards non-autocratic government.

In particular, Magna Carta achieved acceptance for two key principles. The first was that regal authority should be limited by – and separated from – the will of the people. In the immediate context of the early 1200s, that meant that taxes could not be raised without the “general consent of the realm” – and for realm read barons and the church. Even so, as a guiding principle, it was crucial.

The second fundamental doctrine was that individuals were entitled to be treated in accordance with the laws of the land and would, when accused of wrongdoing, be judged by their equals. Again, the contemporary impact of this element of Magna Carta – the famed clause 39 – was limited to the minority of British citizens who were “free men”. However, it confirmed the notion of the Rule of Law and the applicability of trial by jury, which had seen its origins during Henry II’s rule in the previous century when the first judges emerged too.

Ultimately, then, Magna Carta was a bulwark against tyranny. For thirteenth century barons it was also a tool for the advance of oligarchy, a means of protecting their role as the advisors to the king – their positions as such having been established informally during the reign of William the Conqueror. Magna Carta certainly did not envisage genuine democratic rights as they are understood today.

It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) Indeed, the continuing acceptance of a formalised and symbiotic relationship between the monarch and his (important) subjects was not without its hiccups – to put things mildly. And the development of regular parliaments in the mid- to late-thirteenth century (and especially their extension to include non-noble representatives) was largely the consequence of discord, rather than harmonious reform.

The security of parliament’s role – separated into two chambers from the mid-14th century – and the independence of the judiciary were largely dependent on the strength or weakness of successive monarchs. Henry VIII’s “great matter” and the subsequent break from Rome have been seen by many historians as the point at which parliamentary power took on a new character, although Tudor monarchs were canny enough to recognise that empowering parliament was a means to legitimising their own authority. Fundamentally, though, the monarch retained a firm grip on the power of the executive veto.

But if the Tudor period, rumbustious as it was, witnessed a new understanding of the need for balance in the relationship between executive, legislature and judiciary, so it was the dramatic failure of the Stuart kings to accept the limitations of their power which ultimately led to the more formal separation of the three arms of state.

The Star Chamber was originally conceived as a kind of supervisory body to oversee the operation of England’s lower courts and consider appeals, as well as to ensure enforcement of the law against those powerful enough to avoid the clutches of local judicial officials. Yet under James I, the Chamber effectively became the king’s private enforcement agency, meting out judgments on moral as well as legal matters. The court was used to suppress dissent and to bypass the necessity of calling parliaments.

The dismissal by James I of Edward Coke, the Chief Justice, for having suggested that the king was subject to the law, rather than the other way round, brought matters to a head. Incensed, Coke dedicated himself to writing The Institutes of the Lawes of England, which emphasised the role of Magna Carta as the basis for the common law and, notably, as having enshrined the independence of the judiciary from monarchical control. Coke subsequently drafted The Petition of Right, an updated Magna Carta, which parliament compelled the new king, Charles I, unhappily to accept. Charles responded by governing without parliament for 11 years and ramping up his persecution of those who opposed him. The English Civil War, which followed, ended with Charles’ execution, convicted by a jury of 120 officials of the highest rank available.

Coke’s assertion of Magna Carta’s formative place in English constitutional history, especially in confirming the independence of the judiciary, has been upheld with remarkable consistency throughout the last 350 years. The Glorious Revolution of 1688 and the subsequent passage of the Bill of Rights, followed a decade later by the Act of Settlement, finally – and for good – ended any pretensions that a monarch might have to absolute rule and cemented the separate functions of crown, parliament and courts.

In recent decades, constitutional changes have further reinforced the separation of state powers (even if the continued existence of the executive within the legislature raises theoretical difficulties). The last Labour government, for instance, ended the legal function of the House of Lords, transferring power to the Supreme Court as the UK’s highest legal authority, and provided for more independence in the appointment of judges.

Yet it is the great irony of Britain’s unwritten constitution that having arguably reached a point of greatest clarity, so it is up for renewed debate. The role of the European Convention on Human Rights, as legislated for by the Human Rights Act here; the existence of the Strasbourg court; clashes between ministers and judicial officials over their respective roles; and ongoing questions over House of Lords reform – not to mention the state of the Union between Scotland and England: all have become major talking points. Magna Carta, which was intended to resolve a specific set of contemporary problems in 1215, has come for many to represent a simpler, more English, representation of rights.

In the final analysis, however, it is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance. To ignore that is to disregard the struggles of those who have endeavoured to ensure respect for the Rule of Law and to maintain the delicate balance between the powers that rule our lives.

May 6, 2015

Princess Michael of Kent: Magna Carta – Part of ‘2015, Year Of The Great Anniversaries’

Princess Michael of Kent,
The 5th May, The Huffington Post.
Click here to read the original article.

Eight Hundred years ago in June, King John of England signed Magna Carta, a word most English speaking peoples recognise, but what actually was it?

Other than Normandy, By 1204 England had lost most of her ancestral landholdings in France, but King John, an unpopular monarch, continued fighting for many years to regain them. To this end, he repeatedly raised taxes on the barons and the people. When storms destroyed his navy – and when much of his army succumbed to dysentery, by 1214 he failed in his military expedition to France. On his return to England, the king found himself faced with the combined distrust of his rebel barons in the north and east of England who were determined to resist his rule. The rebel leadership was unimpressive by the standards of the time, even disreputable, but the knights were united in their hatred of the king.

In order to bring an end to the subsequent civil war, King John agreed to come to Runnymede near Windsor and meet with his barons to discuss their problems but in reality, this was a delaying tactic to buy time until his mercenary army arrived. However, once the barons had captured London, they were able to force the king to negotiate.

On 15th June 1215, King John, the third of the Angevin kings, (the kings of England were also Counts of Anjou in France), signed Magna Carta or The Great Charter at Runnymede, in which he agreed to make peace with the rebel barons. First drafted by the Archbishop of Canterbury, the charter laid down the essential principles of good government. It promised the protection of Church rights; the protection of the barons from illegal imprisonment; access to swift justice; and limitations on feudal payments to the Crown. This charter was to be upheld through a council of 25 barons.

In August the same year, Magna Carta was annulled by the Pope but following King John’s death the following year, it was re-enacted by the regents for his nine-year-old son and heir, Henry III.
Unsurprisingly, the original agreement was not adhered to by either the Church or by the barons. It was subsequently re-drafted several times until 1297 when King Edward III confirmed it as a part of England’s statute law. Thereafter it was renewed by each monarch until the end of 16th century. In 17th century, Magna Carta was used to argue against the Divine Right of Kings advocated by both James I and Charles I of England (who lost his head predominantly due to his intransigence over his Divine Right to rule.) Thereafter, Parliament and the will of the people were deemed to have a greater say in the laws of the land than the monarch.

The political myth of Magna Carta and its protection of ancient personal liberties persisted even after the so-called Glorious Revolution of 1688 which established the Protestant King William of Orange and his English-born Queen, Mary as joint King and Queen of England. However, this concept of personal liberties first introduced by Magna Carta continued to be believed well into the 19th century. Lawyers made the charter an essential foundation for the contemporary powers of the English Parliament and legal principles such as habaes corpus.

Magna Carta also influenced the early American colonists in the Thirteen Colonies and the 1771 Bill of rights. Furthermore, in 1789, it was used in the formation of the American Constitution which became the supreme law of the land in the new republic of the United States.

On 4th July 1776, the American Declaration of Independence was penned by Thomas Jefferson. English Common Law, enshrined within Magna Carta, was incorporated in that declaration.

“No free man shall be taken, imprisoned, stripped of his rights or possessions, outlawed or exiled or in any way ruined, nor will We proceed against or prosecute him, except by the lawful judgement of his peers and by the law of the land. To no one will We sell, to no one deny or delay right or justice.”

The principles enshrined in Magna Carta form the basis of key democratic ideals including equality before the law and human rights. Thereafter, English rulers could no longer govern unchallenged or without consent. In this way, Magna Carta led to democratic institutions such as Parliament and is the cornerstone of the English Constitution, laying the foundations of democracy which are shared not only in the United Kingdom but across the world; from the USA to India, from Europe to Australia.

Although later research showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons rather than the rights of ordinary people, nevertheless, it still forms an important symbol of liberty today. Both the British and American legal communities continue to hold Magna Carta in great respect.

“As an idea, it won’t lie down; as a formal document it won’t stand up” was said about Magna Carta in the 18th century, but happily its principles still shadow our laws today.

Magna Carta features in Presidential Proclamation – Law Day, U.S.A., 2015

LAW DAY, U.S.A., 2015

– – – – – – –

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

Click here to read the Proclamation as it originally appeared on whitehouse.gov

Throughout the world, the rule of law is central to the promise of a safe, free, and just society. Respect for and adherence to the rule of law is the premise upon which the United States was founded, and it has been a cornerstone of my Presidency. America’s commitment to this fundamental principle sustains our democracy — it guides our progress, helps to ensure all people receive fair treatment, and protects our Government of, by, and for the people.

This Law Day, we celebrate a milestone in the extraordinary history of the rule of law by marking the 800th anniversary of the Magna Carta. Centuries ago, when kings, emperors, and warlords reigned over much of the world, it was this extraordinary document — agreed to by the King of England in 1215 — that first spelled out the rights and liberties of man. The ideals of the Magna Carta inspired America’s forefathers to define and protect many of the rights expressed in our founding documents, which we continue to cherish today.

The Magna Carta has also provided a framework for constitutional democracies throughout the world, and my Administration is committed to supporting good governance based upon the rule of law. Around the globe, we support strong civil institutions, independent judiciaries, and open government — because the rule of force must give way to the rule of law. For more than two centuries, we have witnessed these values drive opportunity and prosperity here in the United States, and as President, I will continue to work to bolster our systems of justice and advance efforts that do the same overseas.

America is and always has been a nation of laws. Our institutions of justice are vital to securing the promise of our country, and they are bound up with the values and beliefs that have united peoples through the ages. The United States and our citizens are inextricably linked to all those around the world doing the hard work of strengthening the rule of law — joined in common purpose by our mutual interest in building freer, fairer, more just societies.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, in accordance with Public Law 87-20, as amended, do hereby proclaim May 1, 2015, as Law Day, U.S.A. I call upon all Americans to acknowledge the importance of our Nation’s legal and judicial systems with appropriate ceremonies and activities, and to display the flag of the United States in support of this national observance.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of April, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and thirty-ninth.


Barack Obama

April 29, 2015

Lord Dyson, MR, Liberties, Customs, and the Free Flow of Trade

It is a real pleasure to have been asked to give the keynote address at this 4th annual British Irish Commercial Law Forum. Given its theme – Magna Carta – I am particularly delighted to have been invited to do so this year. I am, as you may know, chairman of the Magna Carta Trust; a position held by all Masters of the Rolls since the Trust was established in 1956. You can imagine that my term of office as chairman has been rather busier than that of my illustrious predecessors.

One of the aims of the Trust is to ‘perpetuate the principles of Magna Carta.’ Magna Carta is a curious hotch-potch of a document. Many of its provisions cannot by any stretch of the imagination be described as principles. They include detailed measures of an intensely practical nature which reflect the economic and social conditions of the early 13th century. Some of them concern were aimed at resolving grievances that King John’s barons had at the time; grievances that were not only directed at him but were a reaction to Angevin rule.

For example, the Charter required him to remove a number of his more troublesome supporters from office. Chapter 50 provided: “We will entirely remove from our bailiwicks the relations of Gerard de Atheyes, so that for the future they will have no bailiwick in England; we will also remove Engelard de Cygony, Andrew, Peters and Gyon, from the Chan-cery; Gyon de Cygony, Geoffrey de Martyn and his brothers; Philip Mark and his brothers and his nephew, Geoffrey, and their whole retinue”. Quite a putsch.

But it is undeniable that Magna Carta does contain a numbers of chapters which we would recognise as setting out important principles which have real relevance today. They are the reason why it has been grandiloquently been claimed that Magna Carta is the inspiration for democracy; and why thousands of people from all over the World are planning to congregate in a field at Runnymede on 15th June to commemorate the 800th anniversary of the sealing of the Charter. I have in mind in particular the famous chapter 40 “To none will we sell, to none will we deny, or delay, the right of justice”. Words of captivating brevity. And chapter 20: “A freeman shall not be amerced for a small fault but after the manner of the fault; and for a great crime according to the heinousmess of it” (an early assertion of the principle of proportionality). I also have in mind other provisions concerning access to justice and due process of law and the right to fair trial as well as the requirement that justice should be dispensed from a fixed place , that it should be local ; and that judges should know the law, which often meant local law – an early instance of subsidiarity, perhaps. And that only judges should sit in judgment . The Charter was not, however, the source of trial by jury or the great writ of habeas corpus.

Its opening provision guaranteed the rights and liberties of the English Church , although it did not specify what they were. Plenty of room for manoeuvre there, and work for lawyers. And it provided a series of significant guarantees concerning trade and commerce. While it was neither the first nor the last instrument to do so, it established uniform weights and measures. England at the time was developing economically. Successful trade depends, to a large extent, on traders understanding and being in agreement as to what they are selling and buying. It would be a recipe for chaos if a seller took a length to mean 45 inches when the purchaser understood it to mean 37 inches. A thriving mercantile economy, much of which involved trading in a variety of types of cloth, needed a uniform approach.

So Magna Carta standardised the basis of trade. It sought to secure the free flow of trade. It required the removal of all fishweirs from rivers across England . Bad for fisherman, but good for traders. Fishweirs led to rivers silting up. Consequently they became less and less navigable. They clogged up important trade arteries. Their removal was needed to increase free trade.

Free movement of goods is not however sufficient for a thriving economy. There has also to be free movement of merchants. Thus chapter 41 provided “All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there, and to pass as well by land as by water, for buying and selling by the ancient and allowed customs without any evil tolls; except in time of war, or when they are of any nation at war with us”. What better evocation of the idea of free trade? An early embodiment of the ideals which informed what is now known as the European Union.

Encouraging the free movement of goods and tradesmen is one thing. But trade and investment do not simply depend on an ability to trade. If they are to flourish, it is imperative that property rights of traders and investors are protected by the law. The parties to the Charter well understood this. A trader or investor has little incentive to engage in trade or to invest if they are at risk of arbitrary dispossession of their property interests. Such dispossession was not uncommon. King John routinely stripped his subjects of their property in order to fund his military adventures. An object of the Charter was to put a stop to this. It provided at chapter 39 that “no freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the laws of the land”. This was an early foreshadowing of Locke’s theory of government and the 14th amendment of the US Constitution.

So the Charter made provisions to ease trade and secure property rights. It also affirmed that the City of London and all other ‘cities, boroughs, towns and ports shall have their liberties and free customs.’ Commercial centres needed to be supported. The exact nature and extent of the liberties and free customs was not defined. It is right to note, however, that more than seventy charters had been issued to individual towns and cities. Magna Carta was declaratory of their continuing effect, as well as of the right of the City of London to be both self-governing and to continue to appoint its Lord Mayor.

The importance of Magna Carta today

So much for the Charter itself. What is its relevance for commerce and the rule of law today? Here I pause to note a warning that was given in a stimulating recent analysis of Magna Carta by Lord Sumption.

In a recent lecture in which he stripped away a number of what might be called the myths in which the Charter has become enveloped, Lord Sumption concluded with this warning:

‘We are frighteningly ignorant of the past, in large measure because we no longer look to it as a source of inspiration. We are all revolutionaries now, controlling our own fate. So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not.’

Not for him Sir Anthony Eden’s view that the road to 1215 ‘marked the road to individual freedom, to Parliamentary democracy and to the supremacy of the law.’

It may be that nobody directly bases their belief in democracy or the rule of law on the document that was sealed at Runnymede 800 years ago. But it cannot be denied that the Charter does set out a number of principles which, however rudimentary the form in which they were expressed, are now taken for granted as being central to a modern liberal democracy. It is right that, from a historical point of view, we should locate the Charter in the social and economic conditions of the 13th century and acknowledge that it reflects the values and mores of that time. But it is an inescapable fact that the Charter principles to which I have referred have been influential in the development of modern democratic systems. This is not the place to trace the checkered history of these principles. Suffice it to say that the Charter endured for no more than ten weeks, before the Pope annulled it at John’s request. It was brought back to life by William Marshall on John’s death. Thereafter, it languished until, as Lord Sumption explains in a little detail, it was resurrected with enthusiasm by Edward Coke in the 17th century.

John Adams, the second President of the United States, said that ‘Democracy never lasts long. It soon wastes, exhausts and murders itself.’ He believed that in democracies, as in other forms of government, individuals were prey to the same flaws of, as he put it, ‘fraud, violence and cruelty.’ The strength of any democracy lies in the robustness of its institutions of governance and in public confidence in them. Weaken either and democracy is weakened.

One of the great strengths of the UK and states which enjoy similar democratic systems has been their commitment to systems of justice. It is no good having wonderful laws if the state does not provide a fair and effective system of justice to enable individuals to vindicate their rights by reference to those laws. Everyone should have equal access to justice. And I do not simply mean formal equality of access in the sense that ‘The doors of the Ritz are open to all.’ I mean, of course, practical and effective equality. This includes that the courts, legal advice and representation are available to all those who require it. This an essential aspect of democratic participation in society. It is because it is the means by which the law (these days largely the creation of elected Parliaments) is given life. It is also the means by which aggrieved citizens can hold public authorities to account by judicial review in the courts.

Free and fair elections are, rightly, understood to be the central mechanism by which democracy is nurtured and sustained. Equal and effective access to the justice system is another, and equally important, mechanism. At the present time the justice systems in many democratic societies are under strain. Budgetary constraints are having a serious effect. Governments are strapped for cash and have to make hard political choices. These tend to be driven by their assessment of what the electorate regards as important. Sadly for those to whom the maintaining of high standards of justice is of paramount importance, expenditure on justice systems is not seen as a high priority by those in power. In a number of jurisdictions there has been a marked shift away from state-funded legal aid for civil and family justice. This has been particularly controversial in England and Wales. This shift has, to a certain degree, been mirrored by a liberalisation in other funding methods, such as the introduction of various forms of contingency fee funding and the growth of third party funding.

The merits of the public and private funding civil justice are issues for another day. However, if we are to continue to maintain access to the courts, our funding methods must be effective and affordable. If they are not, and individuals and small and medium-sized enterprises are unable to gain access to our courts, we will surrender our commitment to equality before the law and we will diminish our democracies, and their ability to develop their economies. A small or medium-sized business that is unable to enforce its debts, or to keep its trading partners to their bargains through litigation or the threat of litigation is one that will not long thrive or even survive. Diminution of funding is a modern analogue to the barriers to trade that Magna Carta sought to blow away.

Necessarily linked to litigation funding is the cost of litigation. By this I mean to refer to both court fees and lawyers’ costs. If either is too high, they inhibit access to the justice system. The individual litigant who wishes to have recourse to the courts in order to vindicate his private law rights or to hold a public authority to account by judicial review proceedings may not be able to do so. This is potentially very serious. Judicial review is a valuable means of holding public authorities to account. To curtail the ability of a citizen to seek judicial review of a decision is no doubt good for the decision-maker. For public authorities, judicial review is it best an irritant and at worst a road block to the journey it wishes to make. But the denial of judicial review is bad for the rule of law. If citizens cannot afford to have their disputes resolved by the courts, that too is bad for the rule of law. The spectre of self-help and disorder is not fanciful.

From a commercial perspective, if litigation costs are high and a dispute cannot be settled consensually, businesses must divert resources from commercially beneficial activity, such as investing in new products and developing new markets, to litigation. This is may be welcome to the legal profession; but it is of little benefit to the overall economy. Excessive litigation costs silt up the arteries of trade and access to justice as effectively as the fishweirs that were removed by Magna Carta were a barrier to river traffic in the 13th century.

The guarantee of due process vouchsafed by Magna Carta was predicated on the barons’ complaint about John’s resort to arbitrary justice. They wanted justice before the court of barons – their peers – which had been enjoyed before John decided to use the law as a means of increasing his finances. The barons have been portrayed as heroes. But that has not always the case. As Jeremy Bentham noted in his discussion about the laws which prohibited champerty and maintenance, ‘a man [could] buy a weak claim, in hopes that power might convert it into a strong one, and that the sword of a baron, stalking into court with a rabble of retainers at his heels, might strike terror into the eyes of a judge upon the bench.’

The days of barons or anybody else stalking into court, sword in hand, are long gone. But Bentham’s colourful image illustrates brilliantly what we now call “inequality of arms”. These days, inequality is usually demonstrated by a lack of availability of equal resources to opposing parties. It is often manifested by an imbalance between defendants and prosecuting authorities in the criminal law context; and between claimants and public authorities in the public law context. In the case of private law disputes, there can be a serious imbalance between the resources available to an individual of modest means and those available to a wealthy individual or a large corporation. The rule of law requires that a justice system is open to all; and that all who come before the courts are treated equally. Justice should not be at the beck and call of the highest bidder, contrary to King John’s view.

I recognise that the provision of an effective justice system is expensive. In England and Wales, as in many liberal democratic systems, the courts are under huge pressure to cut costs and improve efficiency. I accept that, in our system at least, there is scope for improvement without sacrificing access to justice. Lawyers are said to be conservative and resistant to change. There may be some force in that assessment. But in my country at least, the judges are co-operating in the reforms that are in train. There have been major changes in the processes of criminal, civil and family justice. These are reforms which would have been unthinkable when I entered the legal profession in the late 1960s. And there is much more to come. Perhaps the most fundamental change that now needs to be made is to modernise our IT systems. We have not yet realised the benefits that the IT revolution can bring to our system of justice, a revolution, which if carried through effectively, will increase the speed and efficiency of litigation and reduce costs. I hope, for example, that before long all documents will be filed and managed electronically; and that the majority of procedural applications will be dealt with electronically. The days when court buildings are bursting with paper files on the floor or stored on long shelves or in large cupboards are, I hope, numbered.

We are also exploring the possibility of a scheme for on-line dispute resolution. This is an exciting project which I am confident will get off the ground before long. We shall have to work out the details of how it will operate and, in particular, to what kinds of case it will apply. I can also see no practical reason why, assuming the court has jurisdiction, it should not be possible for hearings to take place across continents via the Internet, bringing litigants from one continent into the same court as litigants from another continent. Changes are taking place at great speed. The main impetus is the need to improve efficiency and reduce cost. In principle, that is a good thing. We need, however, to be vigilant to ensure that this rush to change, increased efficiency and saving of cost does not undermine access to justice. There is no reason in principle why it should have that effect. But we need to take care to protect an ideal that owes not a little to Magna Carta and which is fundamental to the rule of law. It hardly needs to be said that the rule of law is one of the hallmarks of our cherished democratic societies.

It took hundreds of years to move from Runnymede to liberal democracy and to secure firmly the commitment to the rule of law. If we are to maintain that commitment, we need to recognise that it cannot be taken for granted. We must be vigilant to ensure that we maintain an effective, accessible system of justice. It is essential to the promotion of confident economic activity that parties are able to make bargains in the knowledge that their disputes will be resolved in a court of law by independent judges in accordance with the law of the land and that the judgments that they obtain from the courts will be enforced by the state. Without such a system, there is chaos and trade becomes difficult, if not impossible. Our system is not perfect. Indeed, the recent cuts in resources which have been introduced in England and Wales (and other jurisdictions too) as a result of the economic downturn have put our system under enormous strain. The political reality, however, is that there are fewer votes in Justice than, for example, in Health and Housing. But we still enjoy a system which is the envy of most countries in the world. It is precious and we should value it. We should certainly do all we can to protect it.

Thank you.

April 28, 2015

How to teach … the Magna Carta

The Guardian, 27th April 2015.
Click here to read the article as it appeared on The Guardian.

Eight hundred years after the signing of the Magna Carta, The Guardian share useful lesson plans and ideas to engage students in its legacy

This summer marks 800 years since the signing of a document that would become a cornerstone of the British constitution: the Magna Carta.

The charter, sealed by King John at Runnymede on the banks of the River Thames, forms the basis of many freedoms we have today. To mark the anniversary, the Magna Carta Trust will send every UK state primary school a souvenir copy of this historic document later this month.

The Guardian Teacher Network is also celebrating this legacy with our own collection of ideas and resources to enthuse students.

Immerse primary pupils in the medieval context of the document using a short animation by the British Library. Narrated by Monty Python’s Terry Jones, it takes you back to medieval England and gives a potted history of the charter. As students watch, ask them to take notes about why Magna Carta was created and what it said, noting any words they do not understand such as “parchment”, “clause” or “exile”.

Next up, explore the life of King John himself with this British Library lesson plan that looks at events leading up to Magna Carta. Place King John in a royal family tree and get students to write a song, rap or poem about him. This key stage 2 lesson plan from the Magna Carta Project also gives pupils a particularly good feel for what a cruel and unpopular monarch he was. Based on what a medieval king was supposed to do, ask students to write an assessment of King John in the style of a school report card.

The Magna Carta Trust is also giving primary schools a timeline wallchart and newspaper chronicle charting 800 years in the fight for freedom and rights. Use these resources to help students create a Magna Carta of their own. Tear around the edges of a piece of paper, soak it in cold coffee or tea and then hang it up to dry. Students can write either a clause from the original Magna Carta or a rule they feel is important for their classroom or school on this “parchment”. Students could even create a great seal in the style of King John’s to attach to their documents, which would make a fabulous wall display if arranged together.

You’ll find lots more ideas in this teaching pack for key stage 2 by the Magna Carta 800th Anniversary Committee. It includes eight lesson ideas across a range of curriculum areas including history, art, computing and English, that teachers can dip into or use in full.

For secondary students, the Parliament Education Service has created a Magna Carta video drama, which explores the origins of people’s rights, that can be used for citizenship lessons or for history lessons as part of the key stage 3 Magna Carta and the emergence of parliament curriculum. There’s also a Magna Carta assembly plan which includes useful notes on adapting the content for younger and older students.

There are great learning and teaching ideas for key stage 3 here by the Magna Carta Project, including a mock trial activity where students in groups assume the role of rebel barons to sit in judgement on King John.

Magna Carta has inspired everyone from Nelson Mandela, Thomas Jefferson and Mahatma Gandhi to Winston Churchill. Get students to identify how it is reflected in the lives and work of these famous individuals. Alternatively, ask students to research how groups, such as the chartists or suffragettes, or documents such as the US Bill of Rights or the Universal Declaration of Human Rights, were influenced by the charter. As a debate or essay topic, can upper secondary students explain why Magna Carta has been described as the most valuable export of Great Britain to the rest of the world?

And what about its contemporaries? This activity from the British Library explores the significance of Magna Carta to the lives of people in the 13th century. Even though Magna Carta was annulled by the pope after just three months, why do pupils think it was retained, reissued and referred to in no less than 59 legal cases and several chronicles in the 13th century? Students can present their ideas in a cartoon strip or short video.

One of the original clauses of Magna Carta that remains part of English Law today is the right to justice. But many other values that can be traced back to Magna Carta – such as freedom of expression, equal opportunities and respect for diversity – are under threat. Working in groups, ask students to identify the rights and freedoms they would include in a Magna Carta for 2015. Students aged seven to 14 have until Monday 1 June to contribute a clause to the British Library’s Magna Carta for the digital age. Teachers who take part in the project will receive one free ticket to the Magna Carta: Law, Liberty, Legacy exhibition which runs until Tuesday 1 September.

Finally, the British Council has developed a range of Magna Carta lesson plans to engage students of English as a second or foreign language that cover a variety of topics from the history of the 1200s to human rights, and the foundations of modern democracy.

April 27, 2015

Magna Carta and Europe – Yesterday & Today

By Torquil Dick-Erikson
The opinions expressed in the following are the views of the author, and do not represent the views of the Magna Carta 800th Anniversary Committee, or the Magna Carta Trust.

Magna Carta crossed the oceans. In all the lands where English is spoken, its principles are known and recognised.

But it never crossed the Channel.

In 1215, in England the Barons were confronting King John; in Rome Pope Innocent III was setting up the machinery of the Holy Inquisition.

A major purpose of Magna Carta was to limit the powers of the King – the central State authority.
In contrast, the Inquisition expanded and deepened the power of the authorities over the individual. Not only actions, and words, but even thoughts, were scrutinised and, if “culpable”, punished.
In ancient Rome, an accuser faced a defendant, and the case was decided by a judge, independent from both. Under the Empire, the Emperor’s word became law. The dark ages saw more primitive forms of judgement (trial by ordeal, by combat…)

As analysed by the late, great, Italo Mereu, Professor of the History of Law at Ferrara University, in his painstakingly detailed history of the Inquisitorial system from the origins to the 1970s, “Sospettare e Punire” (“To suspect and to punish”), the Inquisition brought together the functions of prosecutor and investigator with that of the judge, in the new figure of the Inquisitor. The Inquisitor’s job was to identify, seize, and interrogate a suspect, in order to arrive at the “truth”. Or, it might be said, at the desired result.

The arbitrary powers of the inquisitor, and of his superiors, were clearly vast. The machinery of the Law became a tool for the ruler to ensure complete command and control over his subjects.
Clearly Magna Carta constituted a potent obstacle to such arbitrary exercise of power. In fact the Pope was furious when informed about what had happened at Runnymede, and wrote to the English bishops and abbots who had helped set it up telling them they had done something “abominable” and “illicit”.

The specific constraints on the power of the State provided by Magna Carta include the famous and much celebrated clauses 39 “No free man shall be…. punished… save by judgement of his peers and by the law of the land”, and 40 “To no-one shall we deny, delay, or sell justice”. Clause 39 in particular removed from rulers a crucial power of government, the power to decide who should be punished and who not. This power was placed in the hands of a jury of the defendant’s peers, thus laying a foundation stone of democracy, and a bulwark against arbitrary punishments.

For eight hundred years since then, the English and the continental criminal procedures have gone off in different directions.

The Inquisition ravaged the nations of continental Europe for centuries, persecuting and prosecuting witches, heretics, and…. scientists. Initially an ecclesiastical institution, its methods were adopted by secular rulers, as a means of suppressing opposition of any kind.

England alone escaped its grip. We fought off the Spanish Armada, which would have brought the Spanish Inquisition to our shores. Elisabeth I rejected the inquisitional method – “I will not make windows into men’s souls”. A sort of papal “fatwa” promised a fast track to heaven for any Catholic who murdered her. Yet she did not outlaw those who followed the old religion, though subjecting them to some constraints.

The power of Parliament grew and in the mid-seventeenth century prevailed over that of the king in the civil war. Parliamentary supremacy – representing ultimately the will of the people – was then firmly consolidated with the glorious – and bloodless – revolution of 1688-89.

Meanwhile across the channel absolutism held sway. The King of France famously proclaimed “I am the State”.

The French Revolution swept away much of the old order. The “rights of man” were proclaimed. Then soon Napoleon took over the helm of France, and his armies set about invading most of Europe to export his notion of the “rights of man”. His codes of law to this day underlie the legal systems used on the continent.

Some of the original thinkers of the enlightenment, like Voltaire, whose ideas helped spark the French revolution, had drawn inspiration from the very different system of government they had seen in England. But Napoleon did not adopt Magna Carta, nor its principles, in criminal procedure. He adopted and adapted the basic elements of the inquisition, redirecting it to serve not the Church, but the State.

In the traditional English system, the powers of jurisdiction governing the different parts of criminal procedure are attributed to different bodies. Essentially, the police, divided into 43 independent local constabularies, investigate a case; the magistrates (mostly non-lawyers, unpaid volunteers working part-time) sign arrest warrants, and then decide bail and committal to trial in public hearings; a barrister is hired to conduct the prosecution in court, where he or she faces another barrister hired by the defence; the judge presides over the proceedings in court deciding procedural disputes between the parties, and handing down the sentence after a guilty verdict. And crucially, the verdict is entirely in the hands of a jury of 12 ordinary citizens, voters selected by lot from the electoral register, peers of the defendant, just as was establsihed by Magna Carta so long ago.

The distribution of these powers into different hands provides essential checks and balances, not just between the legislative, executive and judicial functions, as famously prescribed by Montesquieu, but within the judicial function itself, on whose delicate balance depends the individual freedom of each and every citizen from arbitrary arrest and wrongful imprisonment. The use of legal violence on people’s bodies, by arrest and imprisonment, is an exclusive prerogative of the sovereign State in any society. Its arbitrary use is a prime tool of tyranny. This is why effective legal safeguards against misuse are so necessary. Here lies the genius of Magna Carta, which 800 years ago in England provided the first legal safeguards against such arbitrary misuse.
Compare and contrast with today’s Napoleonic-inquisitorial systems, where a career judiciary, whose members are State employees, comprises prosecutors and judges, but excludes defenders. The prosecutor is nowadays no longer the selfsame person as the judge, but they are both servants of the State (though they may sometimes be institutionally independent from political control), and they are close colleagues, who can work in tandem together on case after case. The judges may have been prosecutors during the course of their careers, but normally they will never have been defenders.
Under the Napoleonic-inquisitorial dispensation used in continental Europe, all these powers are placed in the collective hands of one brotherhood – the career judiciary.

In Italy, for example, criminal investigations, prosecutions, assessments of evidence, decisions on arrest, bail or remand, the direction of courtroom proceedings, judgements of guilt or innocence and sentencing are all under the exclusive control of members of the career judiciary (“magistratura” – not to be confused with the idea of an English “magistrate” for which there is no equivalent).
After a law degree, young law graduates face three career alternatives: attorney, notary, or the judiciary (“magistrato”). To become a judge, they must pass a stiff State exam (set and marked by existing members of the judiciary), and then they are in. After one year’s “apprenticeship”
(“uditorato”), they are assigned to a judicial office as a prosecutor/investigator or a judge, where they sit, pen in hand, empowered to order criminal investigations, arrests, bail, committals, etc. They are not trained in detective techniques, relying on their book knowledge of the law. But they direct the police (who may have such training) in the conduct of criminal investigations. It is said that this separation between competence and responsibility in criminal investigations explains why numbers of cases are not investigated as fruitfully as might be hoped.

Trial by Jury – that great heritage of Magna Carta – has no place in the Napoleonic-inquisitorial dispensation. Most cases are dealt with by professional judges alone. Very serious cases are heard by what might look like a jury of ordinary citizens chosen by lot. Actually, the verdict and the sentence are decided by a mixed panel of six lay “jury-people” and two professional career judges. They all go into the jury-room together, where the “judge’s summing-up” is delivered in secret. Although the six jury-people can outvote the two professionals, the latter obviously take a leading role in guiding the verdict. They also have other means of ensuring that what they consider a “perverse” verdict can be appealed against. There are no safeguards against double jeopardy – the prosecution are perfectly entitled to appeal against an acquittal, even if no fresh evidence has emerged.

Two other direct legacies of Magna Carta are clause 40 – “to no-one shall we delay justice”, and the not-so-often celebrated clause 38. The latter is worth quoting in the original: “Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc aductis” – “No judicial officer shall initiate legal proceedings against anyone on his own mere say-so, without reliable witnesses brought for that purpose”.

These provisions are ensured by Habeas Corpus. Under Habeas Corpus, a suspect if arrested must be brought into open court within hours (or at the very most, a few days), and there charged formally. And the charge must be based on enough hard evidence, already collected, to shew that there is a prima facie case to answer.

It is perhaps taken for granted in English-speaking countries that any proceedings must be based on evidence. Not so however on the continent. In Italy, for example, a person may be arrested on the orders of two members of the judiciary (one acts as “prosecutor-cum-investigator” and the other as “judge of the preliminary investigations”), at the outset, on mere suspicion based on clues (“indizi”). Hence the title of Professor Mereu’s book. The prisoner becomes a “person-under-investigation” (“indagato”), and can be kept in prison during the investigation, which can last months, before the authorities are ready to commit him. There is no right to any public hearing during this time. Within hours of arrest, the prisoner is interrogated by the two judges who ordered his arrest, in a secret hearing. He is assisted by his lawyer (or by a lawyer appointed by his interrogators if he cannot afford his own), and he can try to persuade them that they have got the wrong person, but he cannot see any evidence against him until much later.

All this directly violates clauses 38 and 40 of Magna Carta. Yet this is what happens to British subjects and others who are subjected to the European Arrest Warrant. Under the EAW no British court is allowed to ask to see any evidence of a prima facie case. Presumably the Parliamentarians who voted for this measure must have believed that the foreign judicial authority issuing the EAW would already have the necessary evidence, to be exhibited in a public hearing soon after extradition took place. Yet numbers of innocent Britons can testify that this is not the case. Famously, Andrew Symeou spent 11 months in a Greek prison before his first appearance in an open court hearing, where the case was dropped, owing to lack of any serious evidence.

It is thought that the European Convention of Human Rights offers adequate safeguards for the innocent. It does not. The ECHR makes no provision for Habeas Corpus, let alone Trial by Jury. Article 6 vouchsafes an appearance in a public hearing within a “reasonable” time after arrest, but does not specify what is “reasonable”. For us it is a matter of hours or at most days. In Europe it can be months or even longer.

Our forefathers, in their wisdom, laid down these safeguards for our freedom. Their words have rolled down eight centuries, to protect us. Yet today, we are abandoning them, for an illusion, based on wishful thinking.

This 800th year after Magna Carta is also the 200th anniversary of Waterloo. How ironic if Napoleon should have the last laugh after all.

March 11, 2015

Secret WWII plans to give America a copy of Magna Carta go on show at British Library

The Telegraph, 11th March
By Hannah Furness, Arts Correspondent.

Secret plans to give a copy of Magna Carta to the United States in return for its support in the Second World War are to be put on display for the first time a new exhibition telling the story of the historic document.

The documents, drawn up at the height of the Blitz, show how politicians considered giving a copy of the 1215 Magna Carta to America to help persuade the public to support the war effort.

Annotated by Sir Winston Churchill, the proposals were released by the National Archive in 2007 and have never been on display before.
They will now go on show to the public at the British Library as part of its major new exhibition into Magna Carta and democracy.

The papers show how the idea was described by one official as the ”only really adequate gesture which it is in our power to make in return for the means to preserve our country”.

It was dreamt up after the US Congress passed the 1941 Lend-Lease Act, offering material support to the UK in its fight against the Nazis, and was intended to help mobolise public American opinion in favour of intervening in the war.

The Whitehall documents claim the US action is ”based on enlightened self-interest”, but ”none the less represents a landmark in the history of liberty”.

It goes on to say that Britain, as ”principal beneficiary” of lend-lease, should present the document to the US, which has ”few monuments to the past” but traces its own concept of liberty back to the medieval agreement.

It adds: ”Its inhabitants live almost entirely in the present and they crave tangible evidence of their early European background much as the nouveau riche crave ancestors”.

The plan was later cancelled when it emerged none of the surviving documents were the property of the Government that wanted to hand them over.

Two original copies of the 1215 document will go on show at the British Library exhibition, called Magna Carta: Law, Liberty, Legacy, from this Friday along with Thomas Jefferson’s handwritten copy of the Declaration of Independence and a copy of the Bill of Rights.

Julian Harrison, co-curator of the exhibition, said: ”We hope that, by seeing Magna Carta alongside other documents it has inspired – including the Declaration of Independence and US Bill of Rights – our visitors will be encouraged to reflect on the charter’s influence over the past 800 years and what it means to them today.

”Magna Carta established for the first time that everybody was subject to the law and that nobody, not even the king, was above the law, principles that we often take for granted.”

The exhibition is open from March 13 to September 1.

Click here to read this article as it appeared in the Daily Telegraph.

Magna Carta in the modern age

Rozenberg, Joshua Matthew, Magna Carta in the modern age, The British Library. Click here to read the article on the British Library’s Website.

Today Magna Carta has become a world-class brand, representing human rights, democracy and free speech – despite the fact that the original document makes no mention of these principles. Joshua Rozenberg explains Magna Carta’s place in modern legal and popular culture, and reveals the importance of its 800-year-old symbolism.

Magna Carta is a world-class brand. It stands for human rights and democracy. It stands for trial by jury. It stands for free speech, the rule of law and personal liberty. Except it doesn’t mention any of these things — even in translation. Instead, Magna Carta has quite a bit to say about fish weirs and river banks, about taxes and debts. Two months after King John (r.1199-1216) granted the charter to his barons, he had it nullified by the Pope. There were good grounds to do so, since it was extracted from the King by duress. Although Magna Carta was later reissued, only a few sentences remain on the statute book today.

But brands are not just the sum of their parts. To most people, Coca-Cola means a lot more than sweetened fizzy water with added natural flavouring. Apple products are adored by users who are utterly indifferent to personal computers. And Magna Carta is similarly iconic: regardless of what it says on the parchment, it enjoys instant recognition as the most important legal document in the common law world. We see that from the countless images of King John meeting the barons in 1215, all of them imaginary and most of them wildly anachronistic. We see it in the bags and baubles, the mugs and magnets, sold on the strength of two Latin words. We see it in newspaper cartoons, with David Low warning us in the Evening Standard in 1934 that Oswald Mosley’s ‘Magnissima Carta’ would mean the end of free speech and Peter Brookes telling us in The Times in 2005 that Tony Blair’s anti-terrorism controls left the United Kingdom with no more than a ‘Mini Carta’.

And we hear it in the immortal lines spoken in 1959 by one of television’s best-loved comedians. ‘Does Magna Carta mean nothing to you?’ demanded Tony Hancock (1924-68) of his fellow jurors: ‘Did she die in vain?’ Perhaps Galton and Simpson, Hancock’s scriptwriters, were recalling Sellar and Yeatman’s classic history spoof 1066 And All That, with its frontispiece image of a king smitten by the sight of his lady’s magna garter.

The symbolism of Magna Carta

Such confusion — iconoclasm, even — is understandable in a nation that puts its trust in people rather than in paper. The British have never codified their constitution because most people think that writing it down would not achieve very much. Magna Carta may vie with the English language itself for the title of Britain’s greatest gift to the world, but its place in the laws of England and Wales is largely symbolic.

And yet it is a symbolism that crosses the political spectrum, inspiring fascists and communists, suffragists and environmentalists. Nelson Mandela (1918-2013), speaking from the dock during the Rivonia trial of 1964, expressed his admiration for it. The German-born composer Kurt Weill (1900-50) based a cantata on it. Churchill was advised that a copy of the original charter might reinforce a shared political heritage and secure the support of the United States in World War II.

To some, it seems to be a magic charter. Magna Carta was relied on by one of the Occupy London group of protestors who camped in the courtyard of St Paul’s Cathedral in the winter of 2011/12. Paul Randle-Jolliffe maintained that his supposed descent from one of King John’s barons exempted him from compliance with an eviction order — until the Court of Appeal explained that ‘Magna Carta heir’ was a concept unknown to the law. As the judges told him, ‘Chapter 29, with its requirement that the state proceeds according to the law and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England; but it has no bearing on the arguments in this case.’

That was not a reference to clause 29 of the first Magna Carta. After its annulment in 1215, that charter was revised and reissued in 1216, 1217 and 1225. It was the 1225 version — much shorter than the original — that was confirmed by Edward I (r.1272-1307) and found its way on to the first Statute Roll in 1297. And most of the 1297 statute was repealed by Parliament at various times between 1828 and 1969.

The modern legal interpretation of Magna Carta

Just three clauses of that statute remain law in England and Wales today. Clause 1 provides that ‘the Church of England shall be free’. Clause 9 promises that ‘the City of London shall have all the old liberties and customs’ that it had before. But the best-known remnant is clause 29. Derived from clauses 39 and 40 of the 1215 charter, it says:

No freeman shall be taken or imprisoned, or 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.
These are fine principles but they do not stand up well to modern principles of statutory interpretation.

First, does ‘man’ embrace ‘woman’? Yes, because the Interpretation Act 1978 says that ‘words importing the masculine gender include the feminine’. Next, can anyone who is not a ‘freeman’ claim the rights listed in the first sentence? Historians tell us that freemen were able to marry or go where they pleased, unlike the rural peasantry or serfs who were generally bonded to their land and unable to marry without purchasing their lord’s permission. Fortunately, the Human Rights Act 1998 requires all legislation to be given effect in a way that is compatible with human rights. Courts would be expected to interpret ‘freemen’ as meaning ‘all people’.

So the first sentence of clause 29 seems to mean that nobody can be convicted or punished except by the law of the land. One should not underestimate the importance of such a concession by the King in 1215. ‘There, clearly recognisable, was the rule of law in embryo,’ observed Lord Bingham, perhaps the most eminent English judge of recent times.
In the United Kingdom, governments would continue to observe the law of the land even if clause 29 of the 1297 statute were repealed. And yet the rule of law is far from universal. In the spring of 2014, almost 800 years after Magna Carta was granted, we saw protestors shot dead by military snipers in Kiev, a city at the very borders of Europe. There are several parts of the world in which opponents of the ruling regime simply ‘disappear’. Their supporters would welcome concessions such as those made by King John in 1215.

The second sentence of chapter 29 was cited by a High Court judge as recently as 2007. Quoting Sir James Holt’s resonant translation (1965) ‘to no one will we sell, to no one will we deny or delay right or justice’, Mr Justice Munby complained about the time the courts had taken to hear a housing claim, expressing the view that ‘the potential delay here amounted to a denial of justice in the sense in which that phrase is used in Magna Carta’. Warming to his theme, Munby said there were ‘some principles that ring down the centuries’. In this respect, he continued, the message of Magna Carta was ‘timeless’.

Is Magna Carta still used in the courts?

A search of the Westlaw UK database reveals that the courts of England and Wales have referred to Magna Carta in around 160 reported judgments over a period of some 450 years: not, perhaps, a particularly large number. And I have not found a single modern English case that was decided on the strength of Magna Carta alone.

Litigants-in-person — non-lawyers — tend to invest Magna Carta with more weight than it can carry. In 2013, a man acquitted of growing cannabis sought compensation from Scottish police and prosecutors for time he had spent on remand. David Watson relied on Magna Carta to support his claim that he was not bound by laws to which he had not consented. A Scottish judge had no difficulty in finding no basis for that claim.

These litigants seem to imagine that Magna Carta operates as some sort of restraint on the supremacy of Parliament. It does not. The power of Parliament to legislate as it sees fit dates from the Bill of Rights 1689. It cannot be limited by a statute passed four centuries earlier.

Judges do not enforce Magna Carta today because its terms are too broad to be applied by the courts. It is all very well to say that justice delayed is justice denied. But how long does the delay have to be for it to amount to an injustice? Although some civil claims must now be lodged within a matter of weeks, there is no statute of limitations in criminal cases. Anthony Sawoniuk, a Nazi war criminal, was jailed at the Old Bailey in 1999 for murdering Jews in 1942. Roland Peter Wright, a former headmaster, was imprisoned in 2014 for abusing pupils between 1959 and 1970. Were such delays sufficiently long to render those convictions unjust?
‘To no one will we sell … justice’ is another provision that is difficult to apply. Does it mean simply that judges must not take bribes? Nobody would disagree with that. Or does it mean that people who cannot afford lawyers — and even court fees — must be given the funding they need to enforce their rights?

What’s more, ‘judgment of his peers’ does not guarantee trial by jury. Juries, as we now know them, did not exist in 1215 and are used in only a small minority of trials today.

Magna Carta is still cited in the courts of the United Kingdom — but often as little more than a historical flourish. Some examples from recent judgments: the importance attributed to personal freedom can be traced back at least to Magna Carta; it has been said from the time of Magna Carta that justice delayed is justice denied; and open justice is one of the oldest principles of English law, going back to before Magna Carta. And here is Lady Justice Arden, giving judgment in 2011. ‘The right to liberty of the person is a fundamental right,’ she said. ‘It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the [European] Convention [on Human Rights].’

Magna Carta in the United States

This takes us to lands where Magna Carta is revered rather more than in the country of its birth. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948. Article 9, summarising clause 39 of the 1215 charter, says, ‘No one shall be subjected to arbitrary arrest, detention or exile’.

That, in turn, led directly to the European Convention on Human Rights, which took effect in 1953. Article 5 begins: ‘Everyone has the right to liberty and security of person’. Through the Human Rights Act 1998, article 5 became enforceable against public bodies in the courts of the United Kingdom.

In 1939, when Lincoln Cathedral’s copy of the 1215 charter was put on show at the World Fair in New York, an estimated 14 million people went to see it in just six months. After war broke out, the cathedral’s copy was stranded in the United States, leading to the suggestion that the Americans should be allowed to keep it — or alternatively have it replaced with one of the copies now displayed in the British Library.

It would have been a priceless gift. An American author, writing in 1991, calculated that more than 900 federal and state courts in the United States had cited Magna Carta. In the half-century between 1940 and 1990, the United States Supreme Court had done so in more than sixty cases.

More recently, the highest court in the United States had to decide whether foreign prisoners detained by the United States at Guantánamo Bay, Cuba, could seek writs of habeas corpus that might lead to their release. Allowing their appeal in 2008, the court traced that powerful remedy back beyond the United States constitution of 1789 to what the judges regarded as its origin in clause 39 of Magna Carta. ‘Gradually, the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled,’ wrote Justice Kennedy for the majority.

A writ of habeas corpus (‘have the body’) commands someone holding a prisoner to bring that person before the court and justify imprisonment. But the link between Magna Carta and habeas corpus is surely romantic rather than historic. The writ was established in its modern form in the late sixteenth century, although its origins can be traced back to medieval court records.

A constitutional instrument

Despite all this, there is more to Magna Carta than words and parchment. It is not just one of the oldest statutes in force. It is, as the United Kingdom Supreme Court noted in January 2014, a constitutional instrument — standing alongside the Petition of Right 1628, the Bill of Rights 1689, the Act of Settlement 1701 and the Act of Union 1707. It was arguable, said the court, that fundamental principles contained in such constitutional instruments were not abrogated by the European Communities Act, which requires courts in the United Kingdom to follow European law.

Lord Judge, a former Lord Chief Justice of England and Wales, summed it up well in 2014.

Whatever we may find in the written text, Magna Carta has come down to us through the centuries as the most important single document in the development of constitutional and legal freedom and adherence to the rule of law in the common law world, eventually followed in and hugely influencing the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And, as Lord Bingham, another former chief justice, wrote in 2010, the few clauses of the 1215 Magna Carta that remain law today ‘have the power to make the blood race’. Their words, he suggested, ‘should be inscribed on the stationery of the Ministry of Justice and the Home Office in place of the rather vapid slogans which their letters now carry’.

But Bingham was too wise a judge to think he could enforce a medieval statute in modern times. ‘The significance of Magna Carta,’ he wrote, ‘lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality.’

It is an 800-year-old myth of which we may all be proud.

Joshua Rozenberg

Joshua Rozenberg is Britain’s best-known commentator on the law. He presents the long-running Radio 4 series Law in Action and writes a weekly column for the Guardian. He has a particular interest in freedom of expression and wrote the well-reviewed book Privacy and the Press for Oxford University Press (2004, updated 2005; Chinese edition 2012). After taking a law degree at Oxford he trained as a solicitor, qualifying in 1976. He holds honorary doctorates in law from the University of Hertfordshire, Nottingham Trent University, the University of Lincoln and the University of Law. He is an honorary bencher of Gray’s Inn.

This article is reproduced from the British Library under the Creative Commons license. Click here to visit the original article, and view other associated media not reproduced here.

March 9, 2015

Magna Carta: Drafting Modern Constitutions

Magna Carta: Drafting Modern Constitutions, feat. Jeffrey Rosen, David Fontana, Cornelius Kerwin, A. E. Dick Howard. From the Library of Congress in Washington DC, 2014/12/09. Stable URL (http://www.loc.gov/today/cyberlc/feature_wdesc.php?rec=6613)

Click here to watch the video.

Jeffrey Rosen: Ladies and gentlemen, welcome to our next panel, Drafting Modern Constitutions. I am Jeffrey Rosen. I am the president and CEO of the National Constitution Center, and I bring greetings to the Library of Congress from this wonderful sister institution. The National Constitution Center in Philadelphia for those of you who have not yet encountered U.S. is the only institution in America chartered by Congress to disseminate information about the U.S. Constitution on a nonpartisan basis. And this is a very exciting time for the Constitution Center because, on Monday, Bill of Rights Day, we are about to open an exciting new exhibition related to the topic of our panel today that will display one of the twelve original copies of the Bill of Rights. George Washington sent 13 copies to the states and one to the federal government. Twelve survived, and this extraordinarily rare copy will be displayed along with a rare Declaration of Independence generously lent by David Rubenstein who we’ve just heard some from as well as the first public printing of the Constitution, and it includes a remarkable interactive exhibit that you can access online that we’ve developed along with Constitute, the leading collector of global constitutions, and Google. And using this interactive you can click on any provision of the Bill of Rights, see its historical antecedents, including the Magna Carta and the Revolutionary Era state constitutions, and then trace the spread of that liberty across the globe. So, for example, the Japanese Constitution essentially cut and paste the American Fourth Amendment. This is no coincidence. General MacArthur was drafting a Constitution and I guess took some scissors and some paste and took the Fourth Amendment and put it in the Japanese document. And using our interactive you can compare the text of the Japanese and the American prohibition against unreasonable searches and seizures and see the textual similarities and differences. You can pick any right and see it spread in time and space and see constitutions in Latin America adopting or rejecting the American model and do a close textual comparison. And it’s a thrilling resource. But that’s not all. There’s one final piece of this puzzle which is that Google has just granted a generous grant, and we are going to create the world’s first constitution drafting lab where students and international visitors and constitution makers from around the world can come to the National Constitution Center and visit online and look at the best world’s constitutions and decide what is most relevant to their countries. So that’s why our discussion today with the leading experts in comparative constitutionalism is so exciting to me because I am eager to learn both about how much the U.S. Constitution has, in fact, influenced constitutions abroad over time and how we organizations like the Library of Congress and the Constitution Center can be convening spaces that will allow on a nonpartisan basis constitution drafters from around the world to have access to the best U.S. and other resources. So I want to jump right into this fascinating topic and, first of all, welcome my dear colleague, David Fontana, from GW Law School as well as Cornelius Kerwin who is the president of AU and Dick Howard who is the Miller Professor at UVA. David, I’m just going to jump right in and ask the obvious question, when constitution makers from abroad are drafting constitutions, do they tend to look to the U.S. or not? And, basically, how influential has the U.S. Constitution been in the drafting of foreign constitutions?

David Fontana: I think very influential in theory, less influential in practice. I think in — I think people in other countries think of constitutions as really our greatest export. I don’t think it’s McDonald’s. I don’t think it’s Facebook. I think they think of constitutions as really a uniquely American creation. So I think they’re very much inspired by the fact that we wrote down our most significant commitments and that we’re still living under them several hundred years later. But our Constitution despite all of its majesty and its beauty is an 18th-century constitution. We live in a 21st century world, so I think a lot of specific issues that have come up that have been addressed by later constitutions are looked to by people in other countries. So take for instance the Internet. It might surprise you James Madison didn’t tweet a lot. He didn’t have access to Gmail. Our Constitution doesn’t talk that much about the Internet. More recent constitutions do. So I think other countries tend to look to our Constitution for some general principles, and sometimes when dealing with more specifics they often look to more recent constitutions.

Jeffrey Rosen: Professor Kerwin, there are a couple examples of the U.S. Constitution influencing European ones. We did a wonderful 200th anniversary of the Norwegian Constitution, and they looked very closely to James Madison and separation of powers and judicial review. Are there any other constitutions in particular that the U.S. has influenced?

Cornelius Kerwin: Well, I mean, I would go with David’s point. I mean, the ability, our ability to trace the type of progeny you’re looking for I think is severely limited by the fact that these documents have developed at different times in the political histories of the countries that we are — we are attempting to talk about. The interesting thing for me, and it’s an outgrowth of what was just said, is the ability of constitution makers around the world to anticipate some of the second, third, and fourth generation issues that their country is going to go through. Just as James Madison didn’t tweet, Madison probably didn’t anticipate the Pension Benefit Guarantee Corporation or the FAA. And in my work the reason why I think I was honored to be asked to join you today is that I look at those things that the founders could not have possibly imagined would have developed in a political system like ours. But now we’re drivers in the way we conduct our affairs. And our struggle, which will be the struggle of any developing democracy, is the ability to ensure that constitutional principles of the sort that Justice Breyer and David talked about earlier can be effectively articulated and indeed influence things like contemporary rulemaking by administrative agencies, the means by which those agencies take those rules and implement them and make them meaningful in our lives and how those agencies then resolve disputes because — I wrote a book on rulemaking, and I tried to convince a field that was focused almost entirely on Congress, the presidency, and to some extent the courts that so much of the action of the American public policy process had shifted into institutions that had to adapt, adopt, and somehow graft on to their behaviors, usually through secondary legislative devices, the principles that have made our Constitution as resilient as it has been over the years. So I don’t find it easy to point to documents around the world that are replicas of ours, and I wouldn’t expect to. As David said, in years to come.

Jeffrey Rosen: Dick, we’ve heard that James Madison didn’t tweet. And, of course, there’s a debate about whether when it comes to the Arab Spring the revolution was or wasn’t tweeted. But we are living in a golden age of constitution making, especially in the Middle East in Tunisia and Libya and Syria. What is it that has made the countries in the Middle East draft constitutions, and what sources are they looking to as they do so?

A. E. Dick Howard: Well, I’ve always been interested in how people go about the process of making constitutions. There’s a notion that you sit down — I mean, in my travels I’ve run into American lawyers who say, Oh, you want to write a constitution? I’ve got one here in my pocket. We the people of “fill in blank.” Take it from there. It’s a little embarrassing when you run into folks like that. But there is a kind of a synthetic quality of constitution making. I think some drafters assume that you can simply — today it’s easier than ever because you can just go online and pull them all up. In another day and time, you had the physical copies. But I think there was an assumption that you would just sort of pluck things that look good from other constitutions which I think is a great mistake. It is true that there are some norms that I think one presumably should apply. Now I’m going to be somewhat ethnocentric in saying this. I think certain countries touched by the Enlightenment you make certain assumptions about human rights, about universal values, and you will typically find — I’m thinking of Central and Eastern Europe where I’ve spent some time that, when they turned to writing bills of rights, they inevitably look to UN covenants, to the European Convention of Human Rights, to the OSCE documents and like. And so actually drafting a Bill of Rights, it’s not wholly synthetic, but there’s a lot from which you borrow. When you turn to the frame of government side of things, then I think you’re plunged into local politics. I learned at the elbows of the Virginia legislators what it was to mix politics and constitutions, and that is that inevitably deciding what the balance of power shall be between a legislature and an executive, what the process of making bills into laws will be, all that sort of thing, there’s not any sort of wholesale general model for that. Now — excuse me — the further you get — this is going to go back to your question. The further you get from the sort of countries where constitutions are traditionally thought of, France, America, the Western European countries, the further you get from that, as you get into other cultural context — you mentioned in the Middle East — then you run into very knotty problems. For example, what do you do about Sharia law? What do you do about universal human rights, talk about the rights of women? What you do when local drafters want to place those rights in, say, Sharia courts, applying Islamic law? There is something of a conundrum. There certainly are people in vast parts of the globe, I think in China, Russia, parts of Africa, other areas who reject the whole notion that there’s anything universal about constitution making. They would say it’s cultural imperialism for people like us sitting on this stage to even assume that the values that we’ve inherited from Magna Carta and have incorporated into modern law have that kind of universal application.

Jeffrey Rosen: Well, David, if Dick is right, then we have to be careful on that sort of cultural imperialism. I now want to put you to work as an honorary fellow of the Constitution Center as all of you have just become. We’re designing this international constitution drafting lab and are inviting people who are drafting constitutions from the Middle East and around the world to come and use our online resources. What would be most useful to offer them? If the U.S. model is not helpful, how can we be the international resource for constitution drafting, and how would you design our drafting lab?

David Fontana: I think that, although there are lots of constitutions now and there have been lots of constitutions in history, they’re still finite. And I think they fall into several different families. And so I think, when people sit down to draft constitutions, they’re not thinking of every constitution in the world and every constitution that’s ever been in existence in the world, but they’re thinking of a few familiar reference points. And so it’s often a significant country in the region, so in the Middle East and in Muslim countries, Indonesia is important. The Egyptian tradition is important. And then some significant other models from other parts of the world that have been successful, Canada, South Africa. So I can kind of inviting all the major families to the table is really important. And then I think it’s also important to involve lay people. I mean, after all, they’re the ones who are going to have to live with the document. Whether or not they like it or not really is the most important thing determining whether it works. So one thing we’ve seen as constitutions have been drafted over history that more and more often people are invited to participate one way or another because, if the people don’t like it, it doesn’t stick. After all, what is a constitution but a sheet of paper with a bunch of promises? And if those promises aren’t honored by the people who have to live under them, it’s never going to work. So I think a mix of kind of global experience and then kind of the people who have to live under the document is the best way of organizing a discussion for a country thinking about constitutions.

Jeffrey Rosen:
Fascinating. And President Kerwin mentions you need popular support. And, of course, the U.S. Constitution was drafted by elites, but it was only ratified after winning the support of “We, the people,” which involved writing the Federalist papers, overcoming objections to the lack of the Bill of Rights, and so forth. How can support for a constitution among the people be built in countries in the Middle East that do not have that Democratic tradition?

Cornelius Kerwin: I think it’s immensely challenging because, if you stop and think about the history of the document — and my two colleagues here know it far better than I — it was — it was drafted after an experiment with an Articles of Confederation that didn’t do for the country with the country felt it needed. So we had a do-over, in effect, and we had a country for whatever reason — I think in part the times and the differences between the times then and now — where the country and the document could grow up together. There was an opportunity for the culture and the document to adapt mutually. And I look around the world today, and I take a look at the impatience that one sees among populations that have lived under systems that they are more than anxious to overthrow. The expectations they have for that first attempt at constitution making can be very, very high, perhaps excessively so. And what you worry about then is the failure. I mean, can Egypt, can — pick the part of the world, can they live through their version of the Articles and come out the other end with a stronger document? Because these are times when failure of the sort that one might characterize the Articles can lead to the kind of reaction that is the antithesis or the anathema of constitution making.

Jeffrey Rosen: Dick, Cornelius makes an interesting point that it may not be the constitution itself, the parchment barriers as Madison called them but the political culture that determines constitutional success. And I guess by constitutional we mean a limited government, a democracy of the numerated and limited powers, not unchecked majoritarianism. So what’s most important? Is it the constitutional arrangement of structures and separation of powers, is it the existence or lack of existence of a Bill of Rights, or is it the political culture?

A. E. Dick Howard: That’s a wonderful question because, as my colleagues were talking, I was thinking about the Magna Carta theme and the evolutionary unfolding in effect organic quality of Anglo-American constitutionalism, and reference has been made to the U.S. Constitution preceded by the failed Articles of Confederation. Before that, we had a long period of constitutional disputation. I mean, Americans were sort of talking constitutional law before we had a constitution. You look at the tracks and the resolutions from the 1760s and ’70s. The colonists about to break with Britain were making constitutional arguments based on Cooke and Blackstone and other sources. But they were saying, We have rights, and you British are not respecting those rights. They were really — this is long before Marbury versus Madison or judicial review. But people were saying there are constitutional principles to which we are entitled. So we were fortunate that the period of experimentation from the first state constitutions through the Articles through the Constitution through the Bill of Rights finally, into the 19th century, we were building on a constitutional culture. So we had an inheritance which actually facilitated making the Constitution a reality. On the other hand, I think setting up the right constitution itself could be a part of the political process. You mentioned Japan. How is it possible that a constitution imposed on the Japanese by MacArthur’s military government is still in place and has never been amended? Well, I mean, you say, Well, something — they’ve domesticated the Japanese, become Japanese in the process. One likes to think that our former World War II enemies have now become part of the family of constitutional nations. Germany, the Basic Law of 1949 is a wonderful example. On the ashes of the Nazi period in World War II, Germany has become one of the models that David is talking about.

Jeffrey Rosen: Wonderful. Okay. That’s a very powerful point. You describe the U.S. constitutional culture dating back to the Colonial Era as being so devoted to limited government that the framers thought that certain natural rights were inherent and didn’t even have to be enumerated because the government wasn’t authorized to violate them. And then you gave two examples of successful countries that moved from totalitarianism to democracy, Japanese — Japan and Germany. David, my question is, how can a country create that constitutional culture? There’s a quotation from the new Tunisian president, President Marzouki who said, Much work remains to make the values of our Constitution a part of our culture. So the question is, how do you create that kind of culture? Are there certain prerequisites like the rule of law in civil society that are necessary for a constitution to succeed? And once the constitution is passed, as in Germany and Japan, can the constitution itself transform the culture in a good way?

David Fontana: These are very important questions. I mean, after all, we’re kind of spoiled by our experience. Most constitutions in the world don’t work, don’t work now, haven’t worked before. So it’s a difficult thing to make a constitution work, to plant it in native soil and have it grow. I think as I said before I think some sort of popular participation early on is important, and I think one thing — and this goes to President Kerwin’s comments — people have expectations of constitutions that tend to be too grand sometimes. They think of constitution not just as the basic rules but the rules that will fix all the problems that a country has. I tend to think of constitutions more as air conditioners. They kind of cool off the most heated debates, but them to the side, let politics operate. And so I think oftentimes what you see when people are talking about constitutions is they want it to fix every single problem rather than kind of setting down the basic rules and saying we’ll kind of agree to disagree. We’ll work together going forward. The British have a wonderful phrase for this, the loyal opposition, right? If creating a Constitution doesn’t create a loyal opposition, then it hasn’t really created all that much. If it hasn’t created the rules under which we’ll say I lost at this time but I live to fight another day, then I don’t think it’s really done all that much. And I also, I do plug for constitutions as language, as literature. It’s notable that all these hundreds of years later there are people who can still quote language from our Constitution. When I was in Tunisia and I was walking around kind of the town square in Tunis looking for a soccer jersey, a really important constitutional task when you’re there advising, somebody who I didn’t know across the street screamed out, We, the people, in order to form a more perfect union! Now, this is language, right? They don’t know what it means. They don’t know. I asked them, you know, I could ask them, is it in the First Amendment? They don’t know. But just the power of it as a cultural symbol, I think, is really important. And once it is planted in domestic soil and it creates some important cultural reference marks, then I think it really has the promise of succeeding.

Jeffrey Rosen: I love your metaphor of the Constitution as an air conditioner, the modern or at least the 1950s version of Madison in the Senate as the saucer that cools the coffee. But this idea of the Constitution as a conversation and a structure for debate is powerful. I was so struck by Justice Breyer’s discussion of compromise in the Senate. Wasn’t that interesting, coming to the middle. So we listen to each other and we see what we can agree on. And I have to say, at the Constitution Center, what I’m most proud of and excited about is the fact that we have persuaded the heads of the conservative Federalist Society and the liberal American Constitution Society to cochair a national advisory board that will nominate the leading scholars on the left and the right to participate in constitutional debates, to write the best interactive constitution on the web, to advise this Google app. I think there needs to be a space in America where people of different persuasions can come together to debate the meaning of the Constitution because it’s that debate that creates constitutional meaning. That leads to my question to you. President Kerwin, you’re an expert on administrative law and the drafting of statutes. It’s widely thought that Congress is broken. What is it that distinguishes the drafting of statutes in ordinary legislatures from the drafting of a constitution, and what sort of structures are necessary to ensure the deliberation that David identifies?

Cornelius Kerwin: Yeah. Well, I mean, I think, you know, if you take a look at a hierarchy of law, if that’s the proper way to phrase it, the Constitution stands as the touchstone for all of the rest of what we do. Statutes under our Constitution, I mean, it’s not insignificant that the founders in Article 1 Section 1, the first thing they had to say about the mechanics of government say that the legislative power will be vested in a Congress of the United States. And then they immediately set about contradicting that by turning power to write law over to the President through regulatory means that have grown immensely since. Statute writing in this day and age is writing a set of parameters within which subordinate institutions to them, largely administrative agencies both in line authority under the President or independent such as our commissions really do the heavy lifting for the public policy process. ^M00:22:48 You know, as I said, I wrote a book about rulemaking in order to induce my field, political science, to spend more time and attention to it. Based on the sales, it’s not been enormously successful [laughter]. But the simple fact is, is that if the administrative processes of the United States are not strong reflections of fundamental constitutional principles, then we as a democracy have failed because most of what we consume by way of law each one of us is now the product of an administrative agency as opposed to the Congress that was originally designed to do this for us. So, to my way of thinking, statute is the intermediate authority. It’s the — it’s the thing that connects the constitutional principle to — and I’m going to use an analogy not unlike David’s — to the plumbing of government. And the plumbing of government are literally thousands and thousands of regulations written every year that might not mean much to one of us on a given day but affect somebody in a very profound way. So to me, when we think about challenges that are cultural and otherwise, will we have democracies that will develop that much differently than ours? If they last 200 years, will they be without secondary and tertiary administrative procedures? I kind of doubt it. I’m unable to think about what it might look like. But statute today, the brokenness of Congress, you can read about on the front page of the Washington Post about what the reaction is. Either it’s the President saying, I’m going to use my phone and my pen to do what needs to be done without them or a Congress that reconvenes sometime in January and says it’s going to take off after what they think what are the most important public policy issues are, not one written by them, one written by the Environmental Protection Agency, climate change. So where do statutes reside? Well, they should reside as the most important subordinate law past the Constitution, but they can only reside there if they’re — if they get written, and they don’t get written very often these days.

Jeffrey Rosen: Dick, I’m going to give a last word to you. You have the distinction of having been a founding father in advising both a revision of the Virginia State Constitution and also national constitutions in Eastern Europe. I’d like you to compare those experiences. How is it different to advise Virginia and Eastern Europe. And, my gosh, Virginia, the source of the American Bill of Rights, what did you change in the Virginia Constitution?

A. E. Dick Howard: We didn’t mess with the Bill of Rights. You can bet on that.

Cornelius Kerwin: I was going to say I’ve got a place to rent in Maryland if you get disrobed.

A. E. Dick Howard: It was a wonderful place to cut my teeth on constitution making. I just missed the Philadelphia convention. I was not [laughter]. My students assumed that I knew James Madison but not quite. I sort of stumbled in. I was asked to be the principal draftsman on the Virginia Constitution, and I didn’t know anything about writing constitutions. As any young lawyer would, I said, Sure. I can write a constitution. I can do that, like writing a will or deed. I can write a constitution and got into it and discovered how rich the terrain was. I started looking at other state constitutions. Louisiana, for example, had a provision that said that Huey P. Long’s birthday shall forever be a state holiday in Louisiana. I don’t know what that has to do with fundamental rights, but there it was. What I discovered was the intersection between principle and theory on the one hand and just plain old politics on the other. We looked at what Maryland had tried to do the year before. They took the constitutional officers out of the Constitution which is theoretically a good thing to do. And when they did it, they created a center of opposition at every Maryland county to the proposed constitution. It was voted down by 8 to 1 in some of the Eastern shore counties. So we didn’t mess with the Constitution authors. So going through that process, I can tell you, after you’ve worked with the Virginia legislature, Albania holds no terror [laughter]. I have been there. I’ve been roughed up by experts. So when I started arriving in places like Prague and Budapest and Warsaw, the first thing I’d do is read history books and try to figure what’s going on in these countries because what do I know about the politics of Czechoslovakia or Poland? And the closer I could get to how their — to their mindset, the better. And instead of prescribing to them, here’s what you want to copy, I would try the Socratic method. I would say, Well, here’s what you want to do. Suppose you did it this way or that way, what are the implications? Give them a sense of the implications of choice which in communist countries they basically didn’t have. And what I was — sort of my quiet agenda was hoping that, whatever the final constitution would look like, it would incorporate some of the organizing fundamental principles of Anglo-American constitutionalism: limited government, checks and balances, constitutional supremacy, protection of fundamental rights. These are going to vary from one country to another, but those are the targets that you’re aiming at, it seems to me. And, if I could just get them to think in those terms, my role was a modest one. I never tried to be a drafter in somebody else’s country. But, if I could just help them think about the questions the way you’re trying to do with the Center in Philadelphia, then I felt like it was a trip well worthwhile.

Jeffrey Rosen: Beautiful. Well, I do appoint each of you honorary fellows of the Center. I want you to advise us on this constitution drafting lab and continue to draw on your remarkable expertise. I’d love everyone in the audience and who’s watching across the country to come to the Center and see this remarkable exhibit displaying one of the twelve original Bill of Rights or visit us online and participate in the exercise we’ve been talking about today where you can see the historic sources of our rights in the Magna Carta, trace them through the Colonial Period up to the time of the Declaration, the Constitution, and the Bill of Rights, and then watch the spread of those liberties across the globe. Ladies and gentlemen, please, thank you. Join me in thanking our panelists.

A Magna Carta for Ethiopia?

Professor Alemayehu G. Mariam, A Magna Carta for Ethiopia?, in Open Salon, 1st March, California State University, San Bernardino, CA., USA.

Click here for article source.

I am celebrating the 800th anniversary of the Magna Carta Libertatum or the Great Charter of English Liberties.

Whoa! Hold it! I understand your question!

Why is a guy born in Africa (Ethiopia) now living in America celebrating a document written by a bunch of disgruntled and rebellious English barons quarrelling with a feudal monarch over taxes and restoration of their feudal privileges in Medieval England 800 years ago?

No, I do not like feudalism or monarchies. I grew up in feudal Ethiopia. I saw wretchedness, decadence and decay. The first government I ever knew was a monarchy. A swift stroke of the socialist sickle put that monarchy to eternal rest. For me, feudalism and monarchies are quaint anachronisms. I recall reading Karl Marx describing feudalism as the cradle of capitalism. In 1974, the impetuous and feckless junior officers in the Ethiopian military thought they could make a beeline to socialism from feudalism on the wings of martial law.

I am certainly not celebrating the Magna Carta because King John was a philosopher king. John was the consummate scoundrel. He was treacherous, traitorous, greedy and cruel. John was the kind of royal villain who “can smile as he murdered”. They said, “Hell itself is defiled by the fouler presence of King John.”

John was a vindictive tyrant. He arrested, detained and jailed his subjects at will. He exacted outrageous taxes to fill his coffers, sate his greed and wage war so he could enrich himself even more. His “scutage” tax (payment by a feudal landowner to be excused from military service or provide a knight) on the barons and “amercements” (fines) were elaborate extortion schemes.

John was so greedy that he dispossessed his subjects of their land, horses, carts, corn and wood without legal process. He used the Royal Forests as a major source of revenue and made it the citadel of corruption in his reign. He literally sold justice. Since the royal system of justice had complete jurisdiction over all matters in the kingdom, litigants were required to pay the monarch fees. Depending on the state of his cash flow at a particular moment, John would regularly sell legal rights and privileges to the highest bidder. John surrounded himself with mercenary thugs who fought his wars. He meddled in the affairs of religion. He was a power hungry power monger.

If my description of King John sounds like the average African dictator or thugtator of the 21st Century, the similarities are not that far-fetched. Today, from one end of Africa to the other, African dictator’s arrest, jail, harass and intimidate their opposition at will. African dictators use their kangaroo courts to persecute their opponents, subvert justice and even sell it to the highest bidder out in the open. They dispossess their poorest citizens of their forested ancestral lands, and hand over millions of hectares to foreign “investors” literally for pennies, which in turn burn down the forests to establish their commercial farms. They massacre their citizens who oppose them without raising arms. They jail, torture and exile their political opposition. They steal hundreds of millions of dollars from their people every year and fatten their foreign bank accounts. They meddle in religion and promote communal strife to cling to power. They are warmongers visiting death and destruction on their people. They commit crimes against humanity and genocide. At least two African “heads of state” have been indicted by the Prosecutor for the International Criminal Court. Like King John, African dictators “can smile as they murder” but they can also murder as they smile. ‘Tis true, Hell itself is defiled by the fouler presence of African dictators and thugtators.

Why am I celebrating the English Magna Carta?

To answer my own question, I have to go back some fifty years when I was a teenager in Ethiopia. I was a bookish type. I was very fortunate to have access to the great works of world literature and philosophy. I was quite familiar with the American literati of the 1960s. I also read popular works of fiction in Amharic.

I was most fascinated by the law. From a very young age, I was exposed to the world of litigation. I tagged along to observe court proceedings in the high courts in Addis Ababa and other courts in outlying areas. I remember vividly the legal scribes sitting under makeshift kiosks on the side streets outside the court compounds cranking out pleadings in exquisite Amharic penmanship with a Bic ballpoint pen. I enjoyed listening to silver-tongued lawyers and discerning judges talking and arguing points of law, particularly procedure, and not just in the courtroom. The eloquence of diction, cogency of arguments and spellbinding oratory of some of the lawyers and the razor sharp questions and incisive wit of the judges back then left a lifelong impression on me. They were great role models for me.

I read the Ethiopian Penal and Civil Codes in Amharic in bits and pieces, especially after listening to the lawyers and judges arguing about them. I especially liked criminal and civil procedure (sine sirat). The civil procedure code (Fitha Beher) was less than 245 pages bound in a small volume. The criminal procedure code was a mere 69 pages appended to the penal code. Neither was hard reading at all.

I was most fascinated by legal arguments over violations of procedural rules. Did the police investigate the alleged crime the right way? Was the arrest made on probable cause? Did the police preserve the evidence properly? Were the documents presented in a civil case properly authenticated? Is there sufficient basis to grant an injunction (Mageja)?

I still have my original collection of Ethiopian Codes to this day, one-half century later (see picture above). I now know that the criminal and civil procedural rules in the Codes were highly advanced even by today’s standards. True, oxidative degradation (aging) has taken a toll on my one-half century volumes. The paper is turning yellow and the glue on the spine of those volumes dried out and separated long ago; but I still peruse the Codes from time to time to marvel at how modern and advanced those procedures were.

Thirty years later, I had my chance to stand up for one of the greatest procedural protections of the American people in the California Supreme Court, the right against self-incrimination guaranteed in the Fifth Amendment to the U.S. Constitution. As I walked the steps of that Court in Sacramento, CA for oral argument, I looked up at the imposing Ionic columns and for a brief moment remembered the great lawyers and judges in my childhood, and I smiled.

There was also H.I.M. Haile Selassie’s 1955 Revised Ethiopian Constitution. I never witnessed a constitutional argument in any case I observed in court, or any discussion of it outside of court. I occasionally heard learned judges and lawyers referring to “The Constitution” (Hige Mengist) from time to time, but none of their discussions registered or resonated in my mind.
As I studied that Constitution over the years, I became fascinated by the uncanny similarity of Chapter III to the American Bill of Rights. Chapter III could be described as the “Ethiopian Bill of Rights”. H.I.M. Haile Selassie’s adoption of such broad liberties for his subjects even in principle testifies to some irrepressible modernizing impulse he cherished at the core of his extreme political conservatism as a monarch. Yet, few enjoyed those constitutional liberties. Like most monarchs in history, H.I.M. outlived his usefulness.

I would wager to say Chapter III of the 1955 Revised Constitution of Ethiopia, with a few exceptions, is a virtual carbon copy of the American Bill of Rights and other amendments to the U.S. Constitution:

No one shall be denied the equal protection of the laws… No one within the Empire may be deprived of life, liberty or property without due process of law… No one may be deprived of his property except… by judicial procedures established by law… Ethiopian subjects shall have the right to assemble peaceably… No one may be arrested without a warrant issued by a court… Every arrested person shall be brought before the judicial authority within forty-eight hours of his arrest… In all criminal prosecutions the accused… shall have the right to a speedy trial and to be confronted with the witnesses against him, to have compulsory process… for obtaining witnesses in his favor at the expense of the Government and to have the assistance of a counsel for his defense [at government expense]. (It was not until 1963 that poor defendants in the United States got the right to government-appointed counsel in state criminal prosecutions, 8 years after it was guaranteed in the Imperial Constitution.) No person accused of and arrested for a crime shall be presumed guilty until so proved…. No one shall be punished twice for the same offence… No one shall be subjected to cruel and inhuman punishment… All persons and all private domiciles shall be exempt from unlawful searches and seizures… no one shall have the right to bring suit against the Emperor… No one within the Empire may be deprived of life, liberty or property without due process of law… The present revised Constitution… shall be the supreme law of the Empire…

The 1994 Ethiopian Constitution of the Tigrean Peoples Liberation Front (TPLF) is equally beneficent in words with its grant of liberties and freedoms. Under Chapter III “HUMAN RIGHTS” are listed the following liberties which virtually replicate the American Bill of Rights:

No one shall be deprived of his liberty except in accordance with such procedures as are laid down by law…. arrested or detained without being charged or convicted of a crime except in accordance with [due process]… Everyone shall have the right not to be subjected to cruel, inhuman or degrading treatment or punishment. Anyone arrested on criminal charges shall have the right to be informed promptly and in detail… of the nature and cause of the charge against him. Everyone shall have the right to keep silent and be warned promptly [and] that any statement he may make may be used in evidence against him. Everyone shall have the right to be brought before a court of law within 48 hours after his arrest. Everyone shall be entitled to an inalienable right of habeas corpus… Anyone arrested shall have the right to be released on bail. Everyone charged with an offence shall be entitled to a public hearing before an ordinary court of law without undue delay… Everyone charged with an offence shall be adequately informed in writing of the charges brought against him. Everyone charged with an offence shall have the right to defend himself through legal assistance of his own choosing and to have free legal assistance assigned to him by the government… [The] Constitution is the supreme law of the land….

The TPLF copied and pasted much of the American Bill of Rights into its constitution and promptly shredded it into pieces.

Where did H.I.M. Haile Selassie get his ideas about civil liberties and personal freedoms in the 1955 Revised Ethiopian Constitution?

Where did the Tigrean Peoples Liberation Front get its ideas about civil liberties and personal freedoms in its 1994 Constitution?

There is no question that H.I.M. Haile Selassie adopted the bulk of the American Bill of Rights right down to the phraseology as highlighted above.
There is also no question the Tigrean Peoples Liberation Front got its ideas about civil liberties and personal freedoms from the 1955 Revised Ethiopian Constitution.

So, the $64 thousand dollar question is: Where did the Americans get many of their ideas about important individual liberties and freedoms?

They got it from the Magna Carta. The enumerated liberties in the American Bill of Rights (the first ten amendments to the U.S. Constitution) dealing with freedom of petition (1st amendment), due process of law (5th and 14th amendments) which covers a whole slew of individual liberties, taking and just compensation (5th amendment), neutral magistrate (4th amendment), no excessive bails and fines (8th amendment), speedy public trials, confrontation of accusers, jury trial and impartial jury (6th amendment), supreme law of the land (Art. VI), writ of habeas corpus (Article I, Section IX), as well as freedom of travel and of privacy and other rights have their origins in the Magna Carta.

There lies my answer to my question. I am celebrating the Magna Carta because a good part our DNA for constitutional liberties and freedoms as Ethiopians trace its lineage to the Magna Carta. This fact may come as a surprise to some; but it is undeniable that the genotype of Ethiopian constitutional liberties carries with it the inherited instructions of the genetic code of the Magna Carta. However, I do not believe that heritage or lineage is unique to Ethiopia. The phenotype of every modern constitution that aspires and pledges to protect individual liberties may be different, but all can trace their genotypes directly to the Magna Carta.

What is Magna Carta?

The Magna Carta was the first legal document drafted by the ruled and imposed on the rulers. It is the first bold effort by the ruled to subjugate their rulers to the rule of law. It is the first effort undertaken to create a binding political contract between the rulers and the ruled, with the ruled writing the rules and securing for themselves and their posterity specific written guarantees of liberties and property protections. Of course, the document was tailored for English baron of freeholders against the exercise of royal arbitrary power.

There have been great legal codes before the Magna Carta beginning with the Ten Commandments. The Code of Justinian assembled collections of laws and legal interpretations of the Roman jurists. The Romans also made the law accessible to the plebeians by recording it in the Twelve Tables and posting it in the Roman Forum so that the plebeians are aware of their rights and protect themselves against abuse of power by the patricians. Solon’s Laws aimed to resolve conflict between the landed aristocracy and peasantry in ancient Athens. Solon’s Laws made it possible for any Athenian, not just a wronged party, to initiate a lawsuit. It also established an appellate process for review of the decisions of the magistrates to a court of the citizens at large. The Hammurabic Code of ancient Babylon consisted of 282 laws dealing with a whole range of issues including household and family matters, civil liability and even military service. That Code is today remembered for its draconian punishment of “an eye for an eye, a tooth for a tooth”.

None of the legal documents preceding the Magna Carta were predicated on the principle of the rule of law. None of the laws originated in the sovereignty of the common people nor were they enacted with their consent. The common people had little say in the making of the laws that were imposed upon them. They were expected to obey and follow the laws and live out their miserable lives in quiet desperation. The commoners never dared to impose limits on the powers of their rulers.

Prior to the Magna Carta, King John and his royal predecessors had ruled using the principle of vis et voluntas (“force and will”). John did whatever he wanted because he believed as the king he was above the law and accountable to no earthly power (save perhaps the Holy See). It was a generally accepted fact of medieval English politics that English monarchs should rule in accordance with the prevailing social customs and the common law (judgment and decrees of the courts) aided by the able counsel of the leading members of the kingdom. John’s predecessor Henry II in fact had introduced functional legal procedures which provided protections against deprivation of property without legal process.

The question was what to do if the king disregarded his own laws, the laws of his predecessors, ignored custom and simply refused to be bound by a judicial decree or anything else?

Such was the problem the barons had with King John in the years preceding 1215. John was dismissive and oppressive of the barons. He waged war on them. He sent bailiffs to jail them without evidence or proof of wrongdoing. He demanded feudal payments and taxes from them. He refused to comply with his own laws and shunned the existing legal process.

The barons wanted restraints on John’s arbitrary powers. They wanted him to abide by his own laws and the customs of the land. In June 1215, a group of angry armed barons showed up at Runnymede, a water-meadow alongside the River Thames, not far from London to “discuss” their grievances with King John. They were actually there to deliver an ultimatum to John: Stop your tyrannical ways or prepare to deal with a rebellion and most likely civil war.

John was in no position to negotiate. He had recently suffered an ignominious defeat following his invasion of France. The barons bore the financial burdens of paying for John’s mercenary army by paying “scutage”. They had no interest in John’s feud with the French king and would not support him. John had lashed out against the barons for their refusal to support his military adventures. John’s negotiating position had also been weakened by his ongoing problems with Pope Innocent III in Rome as early as 1208. His attempts to interfere in the appointment of bishops and meddle in the church’s financial affairs earned him a papal excommunication in 1209.

The rebellious barons who showed up at Runnymede in June 1215 were not happy campers. A month earlier, they had taken control of London and felt they had a strong negotiating hand. They had their Articles of the Barons drafted and all they needed was John’s signature. There was not much left for John to wheel and deal. The “negotiations” concluded on June 15, 1215 when King John reluctantly affixed his royal seal on the Magna Carta. John averted a civil war and made peace with his rebellious barons and regained their allegiance.

Although John signed the Magna Carta, he had no intention of upholding its terms despite his express agreement to do so “in good faith and without any evil intention” (Cl. 63).

Within weeks, the Magna Carta agreement was unravelling. John was particularly bothered by the provision dealing with implementation of the Magna Carta. He found clause 61, the security clause, particularly odious. In that clause, he felt he had given away the royal store of power. He had conceded that “the barons shall choose any twenty-five barons of the realm as they wish, who with all their might are to observe, maintain and cause to be observed the peace and liberties which we have granted”. He had effectively brought himself under baronial supervision and monitoring. Clause 61 was a clever move by the barons because they knew John was a snake in the grass.

John did not disappoint. He sent messengers to the Pope in the summer of 1215 requesting annulment of the Magna Carta. The barons struck back by refusing to give up the city of London unless and until John implemented the Magna Carta. In August 1215, Pope Innocent III issued a “papal bull” (an official letter with a seal “bulla”) declaring the Magna Carta “illegal, unjust, harmful to royal rights and shameful to the English people”, and “null and void of all validity forever”.

In September 1215, civil war broke out between King John and his barons. As usual, John enlisted his army of mercenaries to fight the barons. The barons in turn invited the heir to the French throne to come and become king. The French invaded England in 1216. John died of dysentery during that war.

Henry III succeeded John to the throne at age 9. In November 1216, a revised version of the Magna Carta was issued to regain the loyalty and support of the barons. In 1217, yet another version of the Magna Carta was granted after the expulsion of the French. When Henry reached the age of 18, he issued a significantly revised version which was enrolled on the statute book by King Edward I in 1297.

What is in the Magna Carta of 1215?

The Magna Carta is a document of extraordinary insight, foresight and breadth in terms of its articulation of “English liberties.”

It covers a variety of issues ranging from methods of lodging specific grievances regarding land ownership to the regulation of the justice system, taxes (“scutage” and “socage” [periodic payments for using land], and removal of fish from various rivers and standardization of various weights and measures and so on.

The most notable clauses (Cl.) of the Magna Carta spell out the nature of “English liberties” and resonate to the present day through multitudes of modern constitutions and international human rights treaties and conventions.

In the 1215 Magna Carta, King John agreed to recognize and accept a whole slew of liberties guaranteed to his subjects (barons) that are stunning by the standards of any age. Specifically, he agreed to

• observe the Charter and the liberties set forth therein of his “own free will with good faith and [to bind his] heirs forever” (Cl.1);

• impose “no scutage (taxes) unless by the common council of our kingdom (Cl. 12);

• that “Common Pleas [ordinary lawsuits] [so that they] shall not follow our court, but shall be held in a fixed place” (Cl. 17);

• exempt “A free-man [from being] amerced [given an arbitrary fine] for a small offence… (Cl. 20);

• prohibit his “sheriffs, constables, coroners, [and] bailiffs [from] holding

• pleas of [which should be dealt with by] our Crown” (Cl. 24);

• prohibit his “constables and bailiffs [from] taking the corn or other goods of any one, without instantly paying money for them” (Cl. 28); or “tak[ing] the horses or carts of any free-man without the consent of the said free-man (Cl. 29); or “tak[ing] another man’s wood, for our castles or other uses” (Cl. 31);
• terminate use of the ‘writ of præcipe [order to show cause] by which a free-man may lose his court [right of trial in his own lord’s court]” (Cl. 34).
• prohibit the practice in which a “ bailiff shall put any man to his law, upon his own simple affirmation, without credible witnesses produced for that purpose” (Cl. 38);

• stop the practice of “seizing, imprisoning, dispossessing, outlawing, condemning or committing to prison any free man except by the legal
• judgment of his peers, or by the laws of the land” (Cl. 39);

• not to “sell, deny, or delay right or justice” (Cl. 40);

• guarantee that it “shall be lawful to any person to go out of our kingdom, and to return, safely and securely (Cl. 42);

• appoint only “justiciaries, constables, sheriffs, or bailiffs [unless they] know the laws of the land, and are well disposed to observe them” (Cl. 45);

• compensate and make “immediate” restitution to those who have been “disseised [wrongfully removed from possession of property] or dispossessed by us, without a legal verdict of their peers, of their lands, castles, liberties, or rights” (Cl. 52);

• make restitution of “all fines that have been made by us unjustly, or contrary to the laws of the land; and all amercements [fines] that have been imposed unjustly, or contrary to the laws of the land” (Cl. 55);

• agreed to the appointment of “twenty-five barons [elected freely] who shall with their whole power, observe, keep, and cause to be observed, the peace and liberties which we have granted to them [in the Magna Carta] (Cl. 61).

The Magna Carta also included un-libertarian terms. It provided that, “no man shall be apprehended or imprisoned on the appeal of a woman, for the death of any other man except her husband” (Cl. 54). A widow could not be “compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent (Cl. 8). Six hundred years later, the British philosopher John Stuart Mills wrote, “I consider it presumption in anyone to pretend to decide what women are or are not, can or cannot be, by natural constitution. They have always hitherto been kept, as far as regards spontaneous development, in so unnatural a state, that their nature cannot but have been greatly distorted and disguised…” American women got the constitutional right to vote in 1920. There are still countries in the world in the second decade of the 21st Century where women do not have the right to vote.

The Magna Carta also included a streak of the millennia-old bigotry against Jews. It provided, “If anyone has borrowed anything from the Jews and die before that debt be paid, the debt shall pay no interest so long as his heir shall be under age… And if any one shall die indebted to the Jews, his wife shall have her dower and shall pay nothing of that debt…” (Cls. 10, 11.)

Although the 1215 Magna Carta contained 63 clauses when it was first granted, only a few remain part of English law today. In 1969, the Statute Law (Repeals) Act repealed almost all of the 1225 Magna Carta, except Clauses 1, 9, 29. It has also been superseded by the Human Rights Act of 1998.

The legacy of the Magna Carta as I see it

Learned scholars, lawyers, judges and others will continue to argue about the relevance and significance of the Magna Carta for another 800 years. Did the Magna Carta give all persons in the kingdom or just the “free barons” the right to justice and a fair trial? Did it have any relevance to the unfree peasants (“villeins”) who had to apply to their own lords for justice? Did the Magna Carta guarantee the right to trial by jury? Establish the supremacy of the principle of the rule of law? Institutionalize the due process of law? Did it establish for the very first time a constitutional framework (social contract) between government and citizens? Make practical the idea of individual liberty? Institutionalize the principle of the law of the land to which all (including kings, prime ministers, presidents, congresses, parliaments, etc.,) must submit?

Despite scholarly disagreements, there is substantial consensus that the Magna Carta inspired the framers of the American Constitution (1787) and the drafters of the American Bill of Rights [first ten amendments] (1791) in their quintessential pursuit to limit the arbitrary exercise of governmental power. The Universal Declaration of Human Rights [UDHR] (1948), which has been signed by virtually every country from Afghanistan to Zimbabwe also reflects the text and spirit of the Magna Carta. When Eleanor Roosevelt chaired the committee that drafted the UDHR, she dreamt of a “common standard of achievement for all peoples and all nations” with respect to equality, dignity and rights. I agree with her. I do not believe there is Ethiopian “rights”, American “rights”, English “rights”, Chinese “rights”, Egyptian “rights”… I believe there is only human rights.

For me, a dyed-in-the-wool and unapologetic Ethiopian- American constitutional lawyer and scholar, the Magna Carta has enormous symbolic appeal. I understand the Magna Carta as a quintessentially procedural legal document predicated on the twin principles of government accountability and transparency. Those who exercise power shall be held accountable under the supreme law of the land for their actions and omissions by a set of rules and standards. The relationship between the rulers and the ruled must be strictly regulated by a set of clear procedures. No ruler shall have the power to deprive any citizen of life liberty or property without due process of law. I believe the Magna Carta is the first constitutional document in human history to put the brakes on the arbitrary exercise of power and shield individual liberty from the vagaries and capriciousness of those corrupted by power.

William Gladstone who served as British Prime Minister on four separate occasions in the 19th Century, mindful of the Magna Carta observed, “As the British Constitution is the most subtle organism which has proceeded from the womb and the long gestation of progressive history, so the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.” ‘Tis true that imperfect Constitution which turned a blind eye to slavery, is, undoubtedly, a work of extraordinary collective genius.

My view of liberty is a very simple one. I believe liberty predates government. I do not believe government can “grant” rights and freedoms to its citizens. Government, being the collective invention of citizens, exists only to protect the lives, liberties and properties of its citizens.

I have this wacky way of explaining my views on the relationship between government and citizens. I regard government as a watchdog (almost literally) for its masters, the people. (Pardon me if I sound like I am maligning man’s and woman’s best friend with my descriptive metaphor. ) The only function of this watchdog is to protect the lives, liberties and properties of its masters. This watchdog is naturally treacherous and must be watched at all times with eagle eyes and extreme vigilance by its masters. This watchdog has an inbred and ineradicable trait of always turning against its masters unless it is held tightly on a very short chain leash. The constitution is the chain leash on the “government dog”. The shorter the leash, the better and safer it is for the dog’s masters. Thomas Jefferson aptly observed, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.” The government exists to serve the people, not the other way around. The masters of the dog should never fear the dog.

That is why I believe all government officials, leaders, institutions and anyone exercising power should be chained at all times with the “supreme law” of the land, placed under eternal vigilance and held strictly accountable for their actions and omissions. James Madison, one of the foremost framers of the American Constitution wrote, “If men were angels, no government would be necessary.” I would say if governments did not degenerate into demons, men and women could bring out their best and aspire to be angels.

I wholeheartedly agree with John Adams, the second president of the United States who observed, “There is danger from all men [and women]. The only maxim of a free government ought to be to trust no man [or woman] living with power to endanger the public liberty.”

President Dwight D. Eisenhower warned, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Could he have been foretelling the present fate of Africa?

On July 28, 2014, President Obama told a town hall meeting of Young African Leaders, “Regardless of the resources a country possesses, regardless of how talented the people are, if you do not have a basic system of rule of law, of respect for civil rights and human rights, if you do not give people a credible, legitimate way to work through the political process to express their aspirations, if you don’t respect basic freedom of speech and freedom of assembly … it is very rare for a country to succeed.”

Ethiopia needs to succeed as a nation and as a people. Africa needs to succeed as a continent. Today, Ethiopia is in its end stage of becoming a completely failed state. So are many other African countries. I doubt there is a single, not one, African state that would not collapse within days (not weeks) but for Western charity and loans. Contemporary African regimes exist because they are bankrolled by the tax dollars of the Western countries. That is such a bitter pill to swallow!

Over the past five years, cynicism and pessimism have whittled down my hopes and dreams for the rule of law and a peaceful transition to multiparty democracy in Africa. Every day I ask myself, “Is there any hope for Africa?” For Ethiopia? Does Africa’s destiny hang in the balance between the audacity of hope and the rapacity of despair? Is Africa condemned to a future of civil wars, genocides, anarchy, lawlessness and crimes against humanity? Does Africa’s best hope hang on the strings attached to its multilateral loans and aid? Will Africa be buried under a mountain of international debt while predatory foreign investors officiate at its funeral? Is Africa doomed to become the permanent object of charity, sympathy and pity for the rest of the world? Is Africa floating on a turbulent sea of hope or drowning in an ocean of despair? Is there something buried deeply in the African ethos (character), logos (logic of the African mind), pathos (spirit/soul) and bathos (African narrative of the trivial into the sublime) that makes Africans extremely susceptible to the triple deadly cancers of brutality, despotism and corruption? Is Africa the infernal stage of Dante’s “divine comedy”?: “Abandon all hope, you who enter [live] here [in Africa].”

I am sure there will be some among my readership who would question and even criticize me for joyfully celebrating the Magna Carta. After all, it is a document of white people. (I have got to tell the truth!) It is the founding document of the wicked colonial oppressors and the rest of it. The Magna Carta could not possibly have relevance to Black, Brown, Yellow and, yes, Green people. With the exception of Green people, I ask the rest to look at their own constitutions. I would like to ask them where the liberties enshrined in their dusty constitutions originated. I would be glad to know which one of their liberties they are willing to surrender to their governments.

Elie Weisel said, “Just as man cannot live without dreams, he cannot live without hope. If dreams reflect the past, hope summons the future.” So I have chosen to dream about the path of hope – the rule of law administered through a competent independent judiciary to promote freedom, justice and equality– for Ethiopia and the African continent and forswear the path of despair. It is not easy to hope and dream when an entire continent is enveloped and trapped in a long night of dictatorship and oppression. It is in such melancholy state that I find myself reflecting on the words of Henry Francis Lyte:

Swift to its close ebbs out life’s little day;
Earth’s joys grow dim, its glories pass away;
Change and decay in all around I see:
O thou who changest not, abide with me!

I must confess to my readers the great sadness I feel as I conclude this joyful commentary on the Magna Carta.

I am deeply, deeply pained by the irony that I can freely celebrate and cherish an English charter of liberties written 800 years ago which is not even law today, yet I cannot do the same for the Ethiopian Constitution written only twenty years ago to usher a new era of freedom, justice and equality because it is not worth the paper it is written on!

It is time for an Ethiopian Magna Carta!!!

March 2, 2015

Bryan Garner: Magna Carta Style Guide

From the ABA Journal,
1st January 2015
Click here for the original article

The Library of Congress has staged a magnificent exhibit on Magna Carta and its history. It is, after all, the 800th anniversary of the Great Charter of 1215. To commemorate the event, Justice Randy J. Holland of the Delaware Supreme Court has edited a book to accompany the exhibit: Magna Carta: Muse and Mentor, for which Chief Justice John G. Roberts Jr. has written a foreword. When Justice Holland asked me to contribute one of the 15 essays in the book, I decided to take a lexicographic look at the phrase. There are many curiosities about both the phrase Magna Carta and the document it denotes. Very little about Magna Carta is simple or straightforward.

What is the predominant spelling?

Originally, the predominant form was Magna Charta, which long held sway. At its height, Magna Charta was nearly 10 times as common as Magna Carta. But the two spellings had a significant reversal of fortune in the late 20th century.

In 1926, when H.W. Fowler wrote the first edition of his A Dictionary of Modern English Usage, he said: “Magna C(h)arta. Authority seems to be for spelling charta and pronouncing /kar´ta/, which is hard on the plain man. But outside of histories and lecture rooms the spelling and pronunciation charta will take a great deal of killing yet.” In his 1965 revision of that book, Sir Ernest Gowers introduced an excellent update: “In a bill introduced in 1946 authorizing the trustees of the British Museum to lend a copy to the Library of Congress, Charta was the spelling used. But when the bill reached committee stage in the House of Lords, the lord chancellor (Lord Jowitt) moved to substitute Carta and produced conclusive evidence that that was traditionally the correct spelling. The amendment was carried without a division, so Carta has now unimpeachable authority.”

Though Charta vastly predominated before the mid-20th century, it now seems archaic. What an astonishingly swift reversal of linguistic fortune.

How are variant forms produced?

The phrase is pronounced the same regardless of spelling: /kahr´-tuh/. All the dictionaries that give a pronunciation record the Charta spelling as having a hard -k- sound, not a -ch- sound. The modern trend to spell the phrase Carta, not Charta, may have been in part because the cognoscenti realized that English speakers had started mispronouncing the term. (As Fowler said in 1926, the exceptional pronunciation was “hard on the plain man.”) After all, English speakers are notoriously prone to mistaken “spelling pronunciations,” as with comptroller and schism, so the reversion to the spelling Carta after a long period of Charta made sense if English speakers hoped to keep the traditional pronunciation intact. The frequent listing of the phrase in pronunciation books reinforces the idea that mispronunciations had become common during the mid-20th century.

Is it better to say Magna Carta or the Magna Carta?

All the usage guides [see editor’s note, right] prefer omitting the definite article before Magna Carta. The traditional reason for omitting the article is twofold: (1) the name is being used as a proper noun, and (2) in Latin the phrase doesn’t take an article, and early anglicizations followed the Latinate word pattern.

To which King should Magna Carta be credited?

To the nonhistorian, this is really odd. Most of the early dictionaries give the year 1225—the ninth year of King Henry III—as the year for Magna Carta. Dozens of English dictionaries say this, beginning with John Cowell in his law dictionary of 1607. How can this be?

The answer is that the 1225 version of Magna Carta is the one that became incorporated into British statute law. Here’s how the thorough 19th-century lexicographer Alexander Burrill explained it: “This charter of Henry III is the Great Charter—which is always referred to as the basis of the English constitution—the charter of John being only remembered as a monument of antiquity. The Charter of Henry is the oldest printed statute now extant in England. The original charter of John is still preserved in the British Museum.” King John’s Magna Carta was declared a nullity by the pope just a little over two months after it was sealed.

So the early legal lexicographers had reason to prefer citing the third reissue and crediting Henry III. But historians and schoolchildren alike care more today about the original 1215 date than 1225. That was the momentous year.

What is the precise date of King John’s Magna Carta?

Some dictionaries give the date as June 15, 1215. Others give June 19, 1215. This contradictory information counsels in favor of having lexicographers and encyclopedists avoid undue specificity. The Oxford English Dictionary, for example, says Magna Carta was “obtained from King John in 1215″ and leaves it at that. This may be a wise solution, since “the chroniclers give various dates to the settlement, ranging from 18 to 23 June.” Only one major dictionary—the now-defunct Funk & Wagnalls New Standard Dictionary of the English Language (1943)—gives an account that seems to reflect the most reliable modern research: “dated June 15, 1215, but actually sealed (not signed) and delivered June 19, 1215, by King John at Runnymede.” Except John probably did not seal the document either: That responsibility fell to a member of the Chancery staff. But June 19 seems to be the best guess for the document’s taking effect.

What did William Shakespeare and Samuel Johnson have to say about Magna Carta?

Nothing. Absolutely nothing. The various Shakespeare concordances have no listing of Magna Carta. Somehow Shakespeare’s play King John (1596) deals with baronial rebellion all the way through John’s death without a whisper about Magna Carta. As the variorum edition notes, the play contains “not the faintest allusion … to the constitutional struggle which ended in the grant of the Great Charter,” adding: “Startling as it sounds to modern ears, it is almost certain that Shakespeare had small knowledge of that document, and a very inadequate sense of its importance.” This despite the playwright’s extensive legal knowledge. Perhaps this paradox can be explained partly by the low ebb that Magna Carta had reached in the 15th and 16th centuries. Or the omission may have resulted from Shakespeare’s dramaturgical strategy, although some have suggested that King John is more subject to criticism by lawyers than any other play for precisely this reason. One historian of the English Renaissance doubts that Shakespeare had even heard of Magna Carta.

As for Samuel Johnson, his 1755 A Dictionary of the English Language has no entry for the phrase. Nor is there any reference to it in the entry for charter, although Johnson does say this: “Charters are divided into charters of the king, and charters of private persons.” Not until the Rev. H.J. Todd’s revision of 1818, more than 30 years after Johnson’s death, did an entry appear in an edition of Johnson’s dictionary. It read in full: “Magna Charta. n. s. [Latin.] The great charter of liberties granted to the people of England in the ninth year of Henry III, and confirmed by Edward I.”

Did Johnson discuss Magna Carta in any of the copious conversations recorded by his biographer James Boswell? Apparently not. No reference appears even in his voluminous letters.

Which Lexicographer most vividly depicted the scene at which Magna Carta took effect?

Giles Jacob in 1729, but the description wasn’t of King John at Runnymede; it was of Henry III late in life. It was the reaffirmation of Magna Carta in the 37th year of Henry III’s reign—a down-the-line reissue of the charter. The scene took place at “Westminster Hall. And in the presence of the nobility and bishops, with lighted candles in their hands, Magna Charta was read—the king all that while laying his hand on his breast, and at last solemnly swearing faithfully and inviolably to observe all the things therein contained, as he was a man, a Christian, a soldier and a king. Then the bishops extinguished the candles and threw them on the ground; and everyone said, ‘Thus let him be extinguished, and slink in hell, who violates this charter.

This article originally appeared in the January 2015 issue of the ABA Journal with this headline: “A Magna Carta Style Guide: From Charta to Carta and which king should get credit for the Great Charter. Click here to read the article in full.

February 23, 2015

Ditchley Foundation: The future of democracy in the world: Magna Carta 800th anniversary

The following is the Director’s Note submitted after a conference at the Ditchley Foundation held on 29 – 31 January 2015, ‘The Future of Democracy in the World: Magna Carta’s 800th Anniversary.’ The conference assessed the role and the future of democracy today in light of the 800th anniversary of the sealing of Magna Carta, the Great Charter of Liberties, in 1215.

This report can also be read on the Ditchley Foundation’s website here.

Introduction

The first conference of 2015 saw us commemorating the 800th anniversary of the sealing of Magna Carta with a debate dedicated to the state of democracy today, and the challenges it faces for the future. We were very grateful for the support of the Magna Carta Trust 800th Committee. The warmth and vigour of the discussion belied the cold outside and, although we were rather better at identifying the problems than the solutions, there were some clear pointers to where progress most needed to be made. Wise chairmanship helped encourage us in the right direction. Although the history of Magna Carta was not our subject of debate, we kept coming back to its significance as a fundamental building block of even the most modern conceptions of democracy.

Summary

We were agreed that democracy, with its extraordinary success around the world in the last 60-70 years, remained the least worst form of government yet devised, and that no attractive alternatives to it had yet appeared. More authoritarian systems could appear better able to deliver results, particularly in the economic field, in the short term. But we were not convinced that such systems could endure and deliver over time, through bad times as well as good, still less satisfy their citizens’ aspirations for a say in how they were governed and the securing of their basic rights as citizens. We did not accept that some countries or peoples were not ready for, or unsuited to, democracy, or that religion was incompatible with democracy, despite current questioning of this in relation to Islam. However we did recognise that democracy was not necessarily destined to be the dominant form of government everywhere, that its success was increasingly questioned, and that some authoritarian regimes were pushing back.

We did not attempt a comprehensive definition of democracy, but identified some essential features, including the ability to vote to change governments regularly, the existence of fundamental freedoms of expression and association, and the rule of law. Democracy was best viewed as a continuum rather than a binary issue. Each democracy was both context-specific and dynamic. Each also contained the seeds of its own destruction through the potential election of a democracy-destroying party or individual. We struggled to agree on whether there were identical fundamental values in every democracy, and if so which, but did agree that democracy was the best way of securing and preserving basic human rights, despite variations in practice around the world.

We worried about problems facing established democracies, including apparent voter apathy, particularly among the young. The growing distance between politicians and voters was worrying. There was a disconnect between the digital world, where the younger generation felt at home, and traditional politics. Political parties were losing membership and credibility. Some participants questioned whether representative democracy could survive in its current form. New ways of engaging with the voters and increasing participation were urgently needed, particularly online.

Newer democracies and countries trying to transition to democracy were often more enthusiastic about the precious gift of the vote, and more innovative, but could also face more serious problems: elected dictatorships, corruption and trampling of basic rights. The lack of a strong civil society was often a fundamental handicap, particularly where previous dictators had deliberately destroyed institutions and traditional sources of influence.

In all cases the survival of democracy could not be taken for granted, and needed to be protected through active promotion of its virtues, within countries and internationally. It was important that there were international standards against which countries could be measured, and that international organisations should uphold these. We struggled more with the concept of international intervention to protect or restore democracy. Peaceful means of pressure were not controversial, but views were divided about whether military intervention could ever be justified. We also looked at the tricky relationship between democracy and the nation state and nationalism. Which regions could or should have the right to secede?

We had no neat solutions for these problems, but a number of recommendations and pointers for the future emerged clearly from our discussions, and are listed. Our overall conclusion was that democracy faces some serious challenges but is vital to all our futures, and is worth the struggle. Losing it accidentally would be unforgiveable, as foundational documents like Magna Carta constantly remind us.

Main Note

Is democracy still the least worst form of government?

The answer to this question was a resounding yes. Whatever the problems faced by democracy in many parts of the world, it was still what most people from all backgrounds and cultures wanted, if they were given a choice. The spread of democracy since the end of the Second World War had been astonishing. Even the worst dictators now felt the need to give themselves some democratic trappings. People were not wedded to particular models of democracy (and the distinction between Western and other forms of democracy was ultimately a false one), but they valued and craved freedom, and the ability to have a say in who ruled them and how, underpinned by respect for fundamental human rights and values, and institutions like an independent judiciary. More authoritarian systems might be able to deliver faster economic growth and decision-making in certain circumstances, as China in particular had shown. But they were not capable of engaging and satisfying people in the longer term, through bad times as well as good. Truly benevolent dictators were few and far between, if they existed at all — and you could not choose or fine-tune your dictator. There was also a link between open democratic societies and the opportunity and desire to exercise entrepreneurial skills, and therefore economic success, which we should not ignore.

Acceptable alternatives to democracy as we currently knew it had not so far emerged in any recognisable form. Attempts to claim that there were alternative value systems to those which underpinned democracy, such as “Asian values” or “Islamic values”, had so far proved little more than efforts to justify more authoritarian rule in one form or another.

Similarly, while resistance in other parts of the world to a system which could be seen as “western”, or even “colonial”, in origin, was understandable, claiming that such a system was not appropriate for a particular country or region had not proved credible. The ideas of consultative forms of government and individual rights were in any case not exclusively western, as the Ashokan pillars in India reminded us. Most participants rejected the view that some countries or peoples could somehow be seen as “not ready” for or “not suited” to democracy. While education and prosperity undoubtedly helped to allow desire for democracy to grow, the poor and uneducated were also quite capable of understanding what freedom meant and fighting for it, as we had seen in countries like India and Bangladesh and in parts of Africa. We did not accept that some groups, such as Russians, would necessarily always want or need a “strong man” to lead them. This was just a convenient myth.

On the negative side, we had to recognise that the automatic assumption prevalent in the western world for the past 60 or 70 years, that democracy would ultimately spread everywhere, was now under serious challenge from some authoritarian regimes around the world, even in Europe itself. Democracy was not destiny, and had to be defended and fought for. Within democracies too, even established ones, there were some major challenges. Old verities had gone, and the new ones were not yet in place.

We had some debate about whether democracy and Islam were easily compatible, given the view of many Muslims that religion and state could not be separated, and that their religion and its tenets should trump human rights in some areas, for example the place of women in society, or tolerance of some areas of freedom of expression. The majority did not accept that there was any fundamental incompatibility, pointing to cases like Indonesia and Malaysia, and up to a point Turkey, to demonstrate this. But there was a debate to be had. This issue is explored further elsewhere in this Note.

Can the people be trusted?

This was an interesting discussion. The obvious answer was yes — there was no realistic alternative to trusting the people. However many participants made the point that democracy contained the seeds of its own destruction, in that people in a particular country might well vote at some point for an individual or party who would subsequently abolish democracy. Germany in the 1930s was a dramatic example from the past, and there were plenty of current examples of leaders who were apparently popular and who won elections which looked legitimate, at least on the surface, but whose commitment to democracy was suspect, to put it no higher. Questions had for example been asked about the commitment to democracy of the Muslim Brotherhood in Egypt — would the Morsi government inevitably have been one man, one vote, once? The subsequent military coup meant that we did not know the final answer in the Egyptian case, though the Brotherhood in Tunisia had behaved democratically so far.

A more subtle threat came from majoritarianism — the ability of the majority to oppress the minority or minorities. It was hard to avoid this risk entirely — some minorities, however defined, would always resent the ability of the majority to impose their view. But this pointed to the necessity of accompanying fair electoral systems with other devices designed to ensure fairness and protection of basic rights — written constitutions, independent judiciaries, Bills of Rights etc. — and with agreed values. Strong civil society was another essential way of ensuring checks and balances in any particular system. Devolution and decentralisation of power could also be extremely valuable in guarding against “winner takes all” attitudes and outcomes.

What is democracy?

Questions like these inevitably brought us back to the basic issues of how to define democracy. We tried to avoid disappearing too far down this particular rabbit-hole, which could have derailed the whole conference. We were agreed that there was not, and could not be, a universally accepted and completely satisfactory definition of democracy. Even among the established mature democracies, there were great variations of policy and practice, and even of principle in some areas. Each democracy was society-specific, and also constantly changing its own dynamics. Moreover whether a particular country was democratic or not was not a binary question. Instead there was a continuum, and the question was how far along it in any particular direction individual countries should be placed.

At the same time, there were certain essential features of any system which aspired to be democratic, including:

– The ability of the people to change their governments peacefully, at regular and reasonably frequent intervals.
– Freedom of expression.
– Freedom of association.
– Freedom of individuals to be candidates for elected office.
– Equality before the law, and rule of law (assuming the law itself was democratically devised and protected).

We struggled with the extent to which democracies had to have shared value systems within themselves, or between themselves and other democracies. For example which human rights should be regarded as fundamental to any democracy? The UK of the 1930s, once universal suffrage had been achieved, was basically democratic, but laws were in force then, such as the illegality of homosexuality, which, while supported by public opinion at the time, would be regarded as undemocratic by most Britons today. Many countries around the world, with many of the attributes of democracy, still repressed and oppressed gay people and indeed women. This suggested that it was difficult to lay down hard and fast rules about particular values, whose absence, or the absence of means to enforce them, would make a country basically undemocratic. The continuum approach was valuable here. However this view was certainly not shared by all around the table. Some argued that societies where women and minorities were denied their rights simply could not be regarded as fully democratic. Universal values and rights were just that, universal, even if some were not (yet) universally accepted.

We also struggled with the relative importance for democratic status and promotion of democracy of processes, such as elections, and values. Our general conclusion was that this was a false choice. Values by themselves were insufficient if there were no effective institutional mechanisms to put them into daily practice. Processes were crucial but, in the absence of key essentials such as freedom of expression and association, were also clearly not enough to guarantee democracy. There were many countries round the world which held elections which were not, and could not be, genuinely free and fair, even if an individual electoral result might appear to outside observers to conform to the popular will.

The importance of voting

While we agreed that elections were certainly not enough by themselves to deliver genuine democracy, and thought that this point needed to be hammered home regularly, we also agreed that the vote under universal suffrage was not only essential but precious, and by no means guaranteed for ever, even in mature democracies. Many newer or emerging democracies had preserved this sense of preciousness, as shown both by consistently high turnout levels and the sense of civic pride and enjoyment in going into the ballot booth. Sadly some established democracies seemed to have lost it. Voting was not associated by younger generations with exercise of their fundamental rights or their civic duty, and turnout levels were declining worryingly in many mature democracies.

What solutions were available for this? Compulsory attendance at the voting stations, as in Australia or Belgium, seemed to have significant support around the table, although some pointed out the risk of perverse consequences if those who knew and cared least about the outcome of a vote nevertheless could have a big influence on the outcome. Making voting easier (more and more attractive physical places to do it, voting online etc.) was another obvious route. Paying people a small sum to vote could help in some cases. We also noted an interesting trend towards allowing the vote to 16 year olds and above, rather than the more normal starting age of 18. The arguments in favour were not only that 16 year olds were entitled to do many other things, and would be hugely affected by the results of elections, but also that if they were voting while still at school they could be more easily educated about why it was so important.

In this context we noted the risks of the old voting more than the young, as was increasingly the case in many established democracies. Politicians would naturally look to appeal to this grey vote, which could both further alienate the younger generations from the political process, and risk an unfair bias in the ways benefits and advantages were distributed.

Problems of established democracies

A significant part of the discussion was taken up by an enumeration of the ills of mature, “western” democracies. On the one hand we noted that these were mostly “first world” problems which did not yet threaten basic democratic rights and freedoms, and could hardly be compared to the more direct challenges to democracy in parts of the developing world. It could be argued that if people were not very interested in politics or elections, that meant they were basically reasonably happy with the system and its outcomes. On the other, there were fears that the trends were relentlessly negative; that if they continued, the threat to democracy as we knew it could become more actual; and that if the classic role models of democracy such as the UK, US and France began to falter, and lose confidence in themselves, this would be very bad for democratic campaigners, and indeed democracy, in the rest of the world.

Beyond the obvious problem of falling turn-out already noted, we identified the following mature democracy problems:

– Disillusion with the democratic process as unable to deliver results.
– A voter sentiment that the distance between them and their political masters was wide and widening further.
– A voter view, at least partly driven by media coverage, that politicians were only in it for themselves, were all the same and did not keep their promises.
– A feeling among some that western democracies could no longer deliver economic success, as they had done for so long, because the accompanying capitalist model was broken.
– A disconnect between the current democratic process and the digital communication age.
– Loss of membership and credibility by political parties.
– Unhealthy role of money in elections (above all in the US).
– Deepening economic and social inequality, which appeared hard to square with democracy.
– The rise of a professional political class with little or no other experience of life, creating even greater distance of politicians from voters.
– Debased use of language by politicians: clichés and “borrowed words” which failed to connect with, or inspire, voters.
– The rise of populist parties and politicians.
– The sentiment among some voters that politicians were not the ones who held real power, and that those who did were not accountable.
– Voting systems where parties came into government with only a relatively small proportion of the popular vote, or the results of only a few constituencies really mattered to the final outcome.

Fundamental linked factors behind many of these problems were the tendency of many politicians to over-promise and under-deliver, and the consequent tendency of many modern voters, despite their underlying disillusion, to have exaggerated expectations of what politicians could do. The reality in a complex and globalised world was that national politicians had limited power to influence developments, even within their own countries, but were reluctant to admit this, or to discuss the big issues seriously and honestly. Instead politicians tried to market themselves and their proposals like soap powder, while telling voters falsely that their views really mattered. This just increased voter disillusion. Greater humility by politicians would help a lot.

The other fundamental issue was how to mesh democratic practices with the digital world. Currently, the social media could be very powerful influences in some political areas, but mostly on a self-selecting and self-reinforcing basis, and more often negative about individuals or policies than constructive. Politicians used the social media themselves as communication devices, but politics had not yet changed significantly. There was no consensus on whether the internet had changed everything or just speeded things up, but the former view predominated.

How serious were these problems? Most mature democracies could probably continue to muddle through for some time yet. But the lack of interest in traditional democratic processes by the young (who were just as engaged as ever by issues, but not by current politicians) could prove fatal over time. Revolutions and “democratic accidents”, where populist, or even openly undemocratic, parties using more appealing language and promising simple solutions were elected, certainly could not be ruled out. The current trends in some European countries were genuinely alarming, not least the rise of the Front National in France. However there were also counter-examples available — the Scottish referendum had engaged the Scottish population fully because they had seen the result as key to their futures, and the Scottish National Party had recently gained members dramatically.

What were the cures for these ills? We were agreed that there were no magic bullets. But one key had to be to find new ways of engaging voters through allowing them greater participation, and using the power of the digital world. It was easier to say this than to identify effective ways of doing it. We were on the whole suspicious of devices like on-line referenda on wide ranges of issues. But greater use of online consultative groups chosen at random (to avoid the problem of self-selecting lobbies) needed to be explored. Active online monitoring of political decisions was another way forward, and an already increasing phenomenon, as was “watchdogging”, where claims were constantly checked against facts. An interesting proposal made by a number of participants was to use a lottery to select citizens to be given political responsibilities at local level, as a way of both increasing participation and demonstrating how difficult political decision-making was in reality.

The question of money in politics came up quite a lot, mostly in the US context, where the sums involved massively outweighed those in other mature democracies, and seemed to be a major distorting factor. We saw little prospect of substantive change in the US, while hoping that there would be. Elsewhere, there was a lively debate about how best to finance political parties, and many different models, but no obvious right answer.

Several participants questioned whether the model of representative democracy was still relevant and effective, when its key mediating elements, political parties, were so weak and discredited. Perhaps the time had come to move toward more direct, participative models. Others were worried that such models could prove unmanageable and ultimately undemocratic, and could certainly prove dangerous to hard-won rights in areas where unmediated public opinion could be crude and hostile (e.g. the death penalty). Individuals could be harder to control than parties. The majority view seemed to be that new participatory techniques and devices should be seen as complementary to, rather than an alternative to, representative democracy and the role of political parties. But this was an area which needed further exploration. Certainly something had to change and soon.

The other issue raised frequently around the table was the quality of current democratic leadership, which often appeared mediocre at best. We agreed that heroic leaders in the Churchill mould only appeared when there was an existential crisis demanding such qualities. However, it was still not unreasonable to hope that our leaders might occasionally rise above their short-term tactical concerns, and electoral deadlines, to present visions of the future and debates on the fundamental issues which would really engage the voting public, without lapsing into simplistic and dangerous populism.

Problems of newer democracies

The issues in the newer democracies, insofar as a clear distinction of this kind could be drawn, and in countries hoping to transition to democracy, were often starker and arguably more serious. The positive side of greater voter enthusiasm was often more than matched by the habit of many politicians, once elected, to trample on the rights of citizens, and manipulate the decision-making processes and institutions for their own ends. Corruption was often a deep-seated malaise which was ultimately incompatible with real democracy. Some newer democracies also lacked a community of values or even a sufficient sense of national identity. There was also a phenomenon of “authoritarian learning”, where undemocratic regimes picked up lessons from each other on how to repress and stay in power, including how to use the new media to do so.

The internet had on the whole been a boon to those trying to promote democracy where it had not existed before. People could see how people lived in other countries, and realise that their aspirations were not just impossible dreams. They could communicate with other like-minded individuals. Popular protest and the phenomenon of ‘squares’, where people did not just go to demonstrate, but also to live and demand change over periods of weeks or months, were changing the dynamics of politics in many countries. However the social media could be a double-edged sword, as authoritarian regimes learned how to use it to stifle dissent and track down dissenters.

A fundamental problem in some countries trying to transition to democracy was the lack of a well-established and confident civil society, which was one of the most important checks and balances on the power of the executive. This could not be created or re-created quickly. It had after all taken England/Britain almost 800 years to move from Magna Carta to full democracy. This problem was most glaring in countries where dictators had systemically destroyed national institutions, traditional sources of power and influence, and civil society in general, and were then toppled. Subsequent elections could be successfully held, with enthusiastic participation by the newly-free population. But the necessary underpinnings to sustain and consolidate democracy were simply not there. The Arab Spring had dramatically exemplified this in several countries, resulting in either chaos or counter-revolution/military rule (though some argued that the Arab Spring story was far from over and that the desire for freedom and democracy would inevitably reassert itself again).

In this context we discussed again whether fundamentalist Islam and democracy could co-exist. We were reluctant to conclude that this was necessarily the case, but we did note that some were trying to use a purist form of Islam around the world to suppress certain basic rights. Their attitudes certainly did not seem to fit traditional ideas of ‘liberal’ democracy. Could there be such a thing as an ‘illiberal’ democracy? We doubted it.

We saw no easy solution to this issue of civil society absence. Time and encouragement were bound to be needed to develop what was needed. In any event it was vital to recognise the fundamental value of and need for accountable institutions, vibrant civil society organisations and democratic habits and attitudes (such as acceptance of election losses, and the idea of a loyal opposition). That was exactly why elections did not equal democracy.

On the positive side, newer democracies often had less hang-ups about change and innovation, and use of the digital tools, than mature ones, some of which seemed reluctant to tamper with their own ‘sacred’ institutions and traditions, even when these were manifestly not working. This did not prevent some of these mature democracies from continuing to lecture the newer ones — but too often it was a case of “Physician – heal thyself”, which undermined the message.

Promoting democracy

We were agreed that it was not enough to hope that democratic values and institutions would speak for themselves, or emerge without help. They needed to be actively promoted and defended. At national level, civic education, particularly in schools, was the most important way of doing this, but it was far too often neglected or done half-heartedly. The media clearly had a vital role to play but their impact was often double-edged. They were vital to exposing abuses of democracy such as corruption, and were an essential part of democratic accountability. At the same time the penchant in some countries for the media to denigrate all politicians and indeed all politics inevitably contributed to public disillusion, and even threatened to undermine democracy itself, by helping lay the foundations for dangerous populism. This was just a fact of life where we saw little chance of change – the cure would always risk being worse than the disease if freedom of expression were curtailed. But journalists did need to recognise how much power they wielded in this area, positive and negative.

An ever trickier question was whether the international community, or at least the democratic parts of it, should intervene if democracy were threatened in a particular country or overturned. The general view around the table seemed to be that in principle it should. Diplomatic and other peaceful means of pressure could and should be deployed. But there was the usual difficult discussion about exactly when more coercive outside interventions, particularly of a military kind, could be justified: who could authorise them, on the basis of what criteria, and who should carry them out? The Responsibility to Protect doctrine encouraged intervention to save populations from major abuses but did not really answer these kinds of questions. At the same time, it was noted that not intervening could itself be seen as a form of intervention. The role of the outside world in the success and failure of the Arab Spring in several countries should not be underestimated.

There was acceptance that democracy could not be successfully imposed from outside, except in special and unusual circumstances (Germany and Japan after WWII), still less particular models of democracy. The impetus and the will had to come from within if democracy were to be sustainable. Nevertheless outsiders did have a role. One participant compared this to helping prepare the ground, for democracy, and even planting the seeds, without being able to take responsibility for whether they grew successfully.

It was in any case vital that those campaigning for democracy and human rights inside countries where this was difficult felt they had international support, even where there was no prospect of any outside intervention e.g. in China. International standards to which countries could be held were important, and international organisations such as the UN and the Commonwealth could play an important role in not only spreading democratic ideals, but also holding countries to account. The recently agreed Commonwealth Charter was held up as an excellent modern document in this area.

We also looked in this context at the link between democracy and economic success. The temptation to think that this link had been broken was tempting, in the wake of the 2007/2008 financial crisis, and the economic success of countries like China. But many participants argued that this was a false, short-term view. In the long run only democracies could foster the innovation, creativity and rule of law necessary for successful and sustainable economic growth, and provide the necessary underpinning for genuine efforts to root out corruption. Democracies could make plenty of mistakes. They could for example harbour large and increasing inequalities, as was currently the case in several western democracies. But this was not the fault of democracy itself. Indeed this point could be argued the other way: the link between poverty and lack of opportunity in authoritarian societies where most people had no voice was also strong.

International aspects of democracy

We did not explore this interesting area in detail, but some useful points were registered. Democratic deficits could exist not only within states but between states and across global institutions and problems. Examples included the current unrepresentative make-up of the Security Council, obvious problems of democratic legitimacy within the EU and the Eurozone, and questions such as how people’s democratic views could be taken into account over a globally threatening issue like climate change. We had no new answers to offer in these areas.

One issue which did detain us was the relationship between democracy and the nation state. This was complex. On the one hand the sovereign nation state was making a comeback, as could be seen from the aggressive nationalism of Russia and, in a different way, China. On the other, the relevance of the nation state was being challenged by global problems and global digital groups, to neither of which national borders mattered, and by movements such as ISIL. How far should this worry us and could it ultimately destroy democracy? The nation state had been a key building block of democracy. It was difficult to see how democracy could be exercised effectively without defined boundaries within which people could share identities, values and processes. At the same time, national boundaries often seemed to matter less and less to many people, particularly those active in the digital space.

A related issue was how democracies should deal with nationalism. What criteria could and should be used to determine which regions of a country, if any, should be given the right to determine their own future, and secede from their state if they so chose? There was absolutely no consistency of policy or practice around the globe about this. One fear was that democratic countries ready to allow restless regions to secede would finish up not only weakening themselves but also discrediting democracy in the eyes of governments around the world fearful of national break-up.

Recommendations

No neat list could be agreed from such a wide-ranging discussion, but the following key points could be distilled from the discussion:

– Democracy should not lose confidence in itself – other systems’ weaknesses would always show through in the end.
– All democracies urgently need to look for innovative ways of engaging voters: participation, participation, participation.
– Young voters have to be a particular target — the “grey vote” is not enough to sustain a vibrant democracy.
– New ways of using social media and online communities to engage voters are particularly urgently needed. Best practice round the world should be studied and copied.
– Compulsory attendance at voting places should be seriously considered.
– Introducing the vote at 16 is similarly well worth considering.
– Online consultative groups selected at random could be a useful device.
– Online monitoring and watchdogging are other ways of helping communities and voters engage with the democratic process.
– Appointing some local decision-makers by lottery may be worth trying.
– Politicians should work harder to put the real issues on the table, and engage the imaginations of their citizens.
– Civic education about democracy, particularly in schools, needs to be given more time and emphasis.
– The traditional media should be more aware of the risk of undermining democracy itself by their enthusiasm for criticism of democratic politicians and institutions.
– The reality that elections do not create democracy by themselves should be more widely recognised.
– Building a strong civil society should always be a fundamental aim of those trying to foster democracy.
– Democracies and democrats around the world should support each other and be ready to exert pressure on non-democratic countries and leaders.
– Outside intervention to bring about or restore democracy in a particular country should not be ruled out in principle, but military action could only be contemplated in extreme circumstances and on the basis of careful and informed judgment.

Conclusion

The discussion sounds gloomy, but we were reminded more than once that there were also plenty of reasons to be cheerful about the state of the world: the lifting of hundreds of millions of people out of poverty, the empowering potential of the internet for most people, and the sense of common humanity which is now more widespread than ever. Whatever its problems, democracy continues to have a huge amount to offer and is a mark of civilized advance aimed at allowing people to fulfil and express themselves, resolve problems through dialogue, not violence, and lead dignified lives. Younger generations in mature democracies are at severe risk of undervaluing such a precious gift, and of accidentally losing it. All those committed to democracy should do all in their power to prevent this from happening.

This Note reflects the Director’s personal impressions of the conference. No participant is in any way committed to its content or expression.

CHAIR: The Rt Hon. the Lord Judge
Treasurer, The Honourable Society of the Middle Temple; Distinguished Associate, Darwin College, University of Cambridge; Distinguished Visitor and Visiting Professor, Dickson Poon School of Law, King’s London. Formerly: Lord Chief Justice of England and Wales (2008-13); President of the Queen’s Bench Division (2005-08); Senior Presiding Judge for England and Wales (1998-2003).

AUSTRALIA

Dr Roland Rich
Formerly: Executive Head, United Nations Democracy Fund, New York (2007-14); Ambassador of Australia to Laos (1994-97).

BANGLADESH

Mr Mahfuz Anam
Editor and Publisher, The Daily Star (1993-); Formerly: Chairman, Asia News Network (2007-8).

BOTSWANA

Ms Mmasekgoa Masire-Mwamba
Founder, The Masire-Mwamba Office for Diplomacy, Governance and Leadership Development, Gaborone; Botswana Candidate for Commonwealth Secretary General (2015). Hon. Bencher, Middle Temple Inn.

CANADA

Professor André Blais
Professor, Department of Political Science, University of Montreal; Fellow, Royal Society of Canada. Formerly: Chair, Planning Committee, Comparative Study of Electoral Systems (2009-14).

Mr Eric Termuende
Director and Co-Founder, Gen Y Inc. Formerly: VP Operations and Finance, University of Calgary Students’ Union.

CHINA

The Hon. Mrs Anson Chan GBM, GCMG, CBE, JP
Convenor, Hong Kong 2020. Formerly: Chief Secretary for Administration, Hong Kong Special Administrative Region (1997-2001); Chief Secretary of Hong Kong (1993-97).

INDIA

Ms Rajni Bakshi
Senior Gandhi Peace Fellow, Gateway House – Indian Council on Global Relations; Board Member: Child Rights and You (CRY) and Citizens for Peace; Executive Committee Member, Gandhi Smriti and Darshan Samiti (autonomous body under the Ministry of Culture); Associate, Centre of Education and Documentation, Mumbai and Bangalore.

INDONESIA

Dr I Ketut Putra Erawan
Executive Director, Institute for Peace and Democracy, Formerly: Special Advisor to the Minister of Foreign Affairs (2008-09); Ministry of Interior Affairs expert in developing Package Law of Politics (2006-08) and for reviewing Electoral Commission Law (2006-07).

IRAN/USA

Ms Mariam Memarsadeghi
Co-Founder and Co-Director, Tavaana: E-Learning Institute for Iranian Civil Society, Washington, DC; Judge, annual “We The People” nationwide high school competition on the US Constitution. Formerly: Director, Middle East and North Africa programs, and Founder, Iran Program, Freedom House.

IRAQ/USA

Ms Rend Al-Rahim
Co-founder and President (formerly Executive Director), Iraq Foundation. Formerly: Ambassador of Iraq to the USA.

ITALY

Mrs Antonella Valmorbida
Secretary General, ALDA – The European Association for Local Democracy, Strasbourg. Formerly Chair, Committee on Democracy and Civil Society, Conference of International Non-Governmental Organisations, Council of Europe (2008-11).

NAMIBIA

Dr Alfredo Tjiurimo Hengari
Senior Research Fellow, South African Foreign Policy and African Drivers Programme, South African Institute of International Affairs, University of the Witwatersrand. Formerly: Chef de Cabinet and Senior Special Assistant to the Prime Minister of the Republic of Namibia (2002-03).

PORTUGAL

Mr Àlvaro Vasconcelos
Visiting Professor, Institute for International Relations, University of São Paulo (2014-); Director of Projects and Associate Senior Researcher, Arab Reform Initiative, Paris. Formerly: Director, European Union Institute for Security Studies, Paris (2007-12); Co-Founder (1981) and Director (1981-2007), Instituto de Estudos Estratégicos e Internacionais, Lisbon.

REPUBLIC OF SERBIA

Ms Sonja Licht
Founder and President, Belgrade Fund for Political Excellence (2003-); Founder, Belgrade Security Forum (2011-). Chair, Foreign Affairs Council, Serbian Ministry of Foreign Affairs (2009-12); Executive Director then President, Fund for an Open Society (Soros Foundation) Yugoslavia (later Serbia) (1991-2003).

TURKEY

Mrs Özge Genç
Programme Director, Democratization programme, Turkish Economic and Social Studies Foundation, Istanbul (2006-).

Professor Fuat Keyman
Director, Istanbul Policy Center; Professor of International Relations, Sabanci University. Formerly: Lecturer, Department of International Relations, Koç University (2002-10); Member, Council of Wise People (as part of Kurdish Peace Process).

UK

The Lord Aldington
Vice President, National Churches Trust (2008-); Trustee, Royal Academy Trust (2003-); Chairman, 2019 Committee, New College, Oxford. Formerly: Chairman, Deutsche Bank London (2002-09). A Governor and Member of the Council of Management and Business Committee and Chairman of the Finance and General Purposes Committee of The Ditchley Foundation.

Mr Paul Arkwright
Director, Multilateral Policy, Foreign and Commonwealth Office (FCO) (2013-). Formerly: Ambassador to the Netherlands (2009-13).

Dr Andrew Blick
Lecturer in Politics and Contemporary History, King’s London; Formerly: Adviser to democratic reform groups in Ukraine and Turkey.

Professor Vernon Bogdanor CBE FBA
Research Professor, Institute of Contemporary History, King’s London; Fellow, British Academy. Formerly: Professor of Government, University of Oxford; Vice-Principal, Brasenose College.

The Rt Hon. Dominic Grieve QC, MP
Member of Parliament (Conservative) for Beaconsfield (1997-). Formerly: Attorney General (2010-14). A Governor of The Ditchley Foundation.

Professor Robert Hazell CBE
Founder (1995) and Director of The Constitution Unit, School of Public Policy, University College London. Formerly: Director, Nuffield Foundation (1989-95).

Lord Hennessy of Nympsfield FBA
Crossbench Peer, House of Lords; Attlee Professor of Contemporary British History, Queen Mary College, University of London (1992-); Fellow of the British Academy. Formerly: Chairman, Kennedy Memorial Trust (1995-2000). A Governor, a Member of the Council of Management and of the Programme Committee, The Ditchley Foundation.

The Rt Hon. the Lord Howell
Life Peer, House of Lords (1997-). Formerly: Minister of State, Foreign and Commonwealth Office (2010-12); Shadow Deputy Leader of the House of Lords (2005-10).

Lady Judge CBE
Chairman, UK Pension Protection Fund (2010-). Formerly: Chairman, United Kingdom Atomic Energy Authority; Director. News International; Commissioner, US Securities and Exchange Commission. A Governor and a Member of the Programme Committee and Business Committee, The Ditchley Foundation.

UK/USA

Mr Scott Burns
Managing Partner, Brown Rudnick, London.

Sir Robert Worcester KBE DL
Honorary Professor of Politics (2002-), University of Kent; Founder, Market & Opinion Research International (MORI); Chair, Magna Carta 2015 800th Anniversary Committee. Formerly: Chancellor, University of Kent (2006-13). A Governor, The Ditchley Foundation.

USA

Dr Shadi Hamid
Fellow, Center for Middle East Policy, Brookings Institution; Vice Chair (formerly Director of Research), Project on Middle East Democracy, Washington. Formerly: Director of Research, Brookings Doha Center).

Professor Daniel Magraw
Professorial Lecturer, School of Advanced International Studies, John Hopkins University; Chair, Task Force on Magna Carta, Section on International Law, American Bar Association. Formerly: President and Chief Executive Officer, Center for International Environmental Law, Washington, DC (2002-10).

Mr Matthew Smith
Fulbright Student/Master’s Candidate in Public Policy, University of Warwick. Formerly: Director of Wolf PAC Indiana.

Professor Mark Warren
Harold and Dorrie Merilees Chair in the Study of Democracy, Department of Political Science, University of British Columbia. Formerly: Co-Founder, Center for Democracy and the Third Sector, Department of Government, Georgetown University.

Mr Kenneth Wollack
National Democratic Institute (1986-): President (1993-); Executive Vice President (1986-93). Formerly: Chairman, US Committee, United Nations Development Programme.

Mr Stephen Zack
Attorney and Partner, Boies Schiller and Flexner, LLP. Formerly: President, American Bar Association (2010-12).

February 12, 2015

PMQs: A new Magna Carta?

Q15. [907581] Mr Graham Allen (Nottingham North) (Lab): If he will commission a new Magna Carta to renew democracy in the UK as part of the celebrations of the 800th anniversary of Magna Carta; and if he will make a statement.

The Prime Minister: We should be proud that in Magna Carta our country established rules of justice and freedom that, 800 years later, still inform our constitution and resonate around the world. While there is a long-standing debate over the issue, there are no plans at present for a written constitution.

Mr Allen: I note that the Prime Minister says “at present”. Does he agree, though, that there are unacceptably high levels of voter disengagement, with more people staying at home than voted Labour and Conservative at the last election? Would he commit his Government, now, to preparing an all-party constitutional convention, in order to give every UK citizen a copy of our society’s rulebook—either a statute of the Union or a written constitution—as a part of electors feeling once again that they own our democracy?

The Prime Minister: Obviously, I always look at the hon. Gentleman’s suggestions very carefully, because he has made a number of sensible cross-party interventions over recent years, but I have my doubts whether another talking convention is the answer. I think we need to look at some of the constitutional issues that leave people feeling left behind, not least English votes for English laws, and make sure that we put those things in place. The disappointment I have with the Labour party is that it is prepared to talk about all-party talks on Wales, Scotland or Northern Ireland, but when it comes to empowering English people and making sure that they have rights in this House, it is completely absent from the debate.

Jacob Rees-Mogg (North East Somerset) (Con): Article 39 of Magna Carta contains the origins of our right to trial by jury. In a recent report, Sir Brian Leveson, not satisfied with undermining the right to a free press, wants to restrict the right to trial by jury. Will my right hon. Friend, as long as he is Prime Minister, defend our historic rights?

The Prime Minister: I am a great supporter of jury trial. I think it is one of the very important things we have in this country that safeguard people’s rights and freedoms, and I do not want to see it reduced.

Click here to download this as a transcript.
Click here to view the Hansard Society’s website.

February 2, 2015

The Magna Carta Explained

The Telegraph, 2nd February 2015

‘As the four original surviving copies of the Magna Carta are brought together under the same roof for the first time, here is a Q&A about the document

The Magna Carta was granted 800 years ago. So what is it, how did it come about, and what does it do today?

What is Magna Carta?

Magna Carta is an 800-year-old document containing the idea that no-one is above the law, and it still forms the foundation of many modern ideas and documents today.

What does Magna Carta mean?

It means “Great Charter” in Latin. In fact the whole document is in Latin.

When and where was Magna Carta granted?

Magna Carta was first drawn up in 1215, granted by King John on June 15 at Runnymede near the River Thames in Surrey. A different version (the one we draw from today) was reissued by John’s son, Henry III, 10 years later in 1225. Magna Carta was finally enrolled on the statute book (meaning it became part of English law) by Edward I in 1297.

How many of the original Magna Carta documents survive?

King John sent copies of the first Magna Carta across his kingdom – though we are not certain about the actual number. Today only four survive: one in Lincoln Cathedral, one in Salisbury Cathedral, and two in the British Library.

Why was Magna Carta first written and granted?

Despite what it stands for today, Magna Carta was not written with lofty ideas of justice and liberty in mind. It was originally meant as a peace treaty between King John (of Robin Hood fame) and his barons, with whom he was at war. The barons had captured London and John found himself in a political mess – he needed a quick get-out solution.

Did Magna Carta achieve its short-term aims of creating peace?

Not at all – in fact it failed spectacularly. Although John agreed to Magna Carta at first, he quickly became bitter when its terms were forced upon him. He wrote to the Pope to get it annulled. The Pope actually happened to agree with John (for once), saying Magna Carta was “illegal, unjust, harmful to royal rights and shameful to the English people”. He then declared the charter “null and void of all validity for ever”.

Full-scale civil war then broke out between John and his barons. It only ended after John’s death from illness in 1216.

Is it true that King John never “signed” Magna Carta?

Yes, at least not in the way we think of signing. Back in the Middle Ages kings never signed their name on documents to pass them into law. Instead John used his Great Seal to authenticate the document. This subtlety has confused many people over the years. Most recently the Royal Mint has been criticised for the design on its commemorative 800th anniversary £2 coin, which shows John brandishing the document and a quill.’

To read more Q&A responses from the Telegraph, click here

January 30, 2015

“The Future of Democracy in the World” Conference

Ditchley Park, Oxfordshire – The Ditchley Foundation is organising a conference in January with the support of the Magna Carta Trust 800th Anniversary Commemoration Committee to consider ‘The Future of Democracy in the World’. The invitation-only conference will be chaired by former Lord Chief Justice of England and Wales, The Rt Hon. Baron Judge QC.

800 years after Magna Carta, democracy has become the most common form of government across the world, but the last few years have seen it under challenge from a number of quarters. Concerns may be exaggerated – demonstrably, when people are given a say, they want the basics of popular choice, freedom and rule of law. Democracies often look more chaotic and confused than dictatorships, but they have hidden strengths and resilience, arising from their popular legitimacy and the robust civic spirit and institutions which should underpin them.

This conference will bring together politicians, officials, constitutional thinkers, academics and journalists to consider what a modern democracy needs to succeed and to recommend approaches to anchor its success more firmly for the future and ensure that coming generations will not value it less than their predecessors.

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