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November 17, 2016

Magna Carta’s American Adventure

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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?

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June 22, 2016

Terrorism and Tolerance – David Anderson QC

Terrorism and Tolerance‘, Royal Holloway, University of London. 13th June. David Anderson QC, Speaker. The first in the Fairhaven Lecture series.

Download the transcript of this lecture here. This includes footnotes and a bibliography.

PROLOGUE

1. It is an extraordinary honour to have been asked to give the Magna Carta Lecture, particularly in the first year of the Law School at Royal Holloway. I have nothing to add to the torrent of scholarship, some of it penned by judges, that accompanied last year’s 800th anniversary of the Great Charter. But barristers who live and work in the Temple count as a neighbour someone who is my hero of that time: William Marshal, the commoner who made his name and his fortune as a tournament champion on the European mainland before becoming Earl of Pembroke and the power behind five English kings, the most disastrous of them King John.

2. Marshal was a key figure at the time of Magna Carta. His latest biographer states that he “may have encouraged continued discussion and moderation on both sides in the months that led up to Runnymede”.

CATHOLICISM IN 19TH CENTURY ENGLAND

3. Fast forward – not 800 but 600 years, to the end of the Napoleonic Wars, the start of a period when the history of this country was touched by a combination of phenomena familiar today: mass immigration,religious difference (though at that time between Christians of the Catholic and Protestant persuasion), disputes about civil liberties, and terrorism.

4. The indigenous Roman Catholic population, already augmented by refugees from the French Revolution, was swelled by Irish labourers who came to build the canals, railways and ships of an industrialising Britain. This came against a background of gradually improving civil rights for Catholics, culminating in the Roman Catholic Relief Act 1829, which permitted Catholics to sit in Parliament and repealed the Test Acts that for more than 150 years had required persons filling civil and military offices to swear an oath declaring that they did not subscribe to the Catholic doctrine of transsubstantiation. Then in 1845 to 1847 came potato blight in Ireland, and in its wake starvation. Hundreds of thousands of Irish people came to England and Scotland in just a few years, massively increasing the size of a Catholic population that at the other end of the social scale was already experiencing intellectual revival as a consequence of the Oxford Movement and some high-profile conversions.

5. But the combination of immigration and emancipation was a threatening one to the majority population. A previous liberalising measure, the Papists Act 1778, which allowed loyal Catholics among other things to keep schools and join the army, triggered the Gordon Riots of 1780. These saw a crowd of around 50,000 people marching on Parliament with banners proclaiming “No Popery”, and the destruction of Catholic churches, chapels and homes. Among the causes of the riots were fears, fomented by the Protestant Association, that armed Catholics could function as a fifth column in the wars then being fought with France and Spain.

The majority population felt threatened, even at its moment of greatest confidence, by the resurgence of Catholicism in the midnineteenth century. When Pope Pius IX responded to the increased strength of English Catholicism by re-establishing the Catholic ecclesiastical hierarchy in 1850, Britain was at peace, and about to celebrate the zenith of its industrial power at the Great Exhibition of 1851. But the initiative was dubbed the “Papal Aggression” and met with furious hostility.

Francis Close, a Protestant clergyman in Cheltenham, was concerned about a Catholic takeover: “We give them civil and religious liberty usque ad nauseam, and yet they go on bit by bit … until at length comes a scarlet cardinal to take possession of the land. This is Romish gratitude.”

8. Later in the century, anti-Catholic feeling – and its close companion, anti-Irish feeling – were further fuelled by what we would now call terrorist incidents, notably the bombing at Clerkenwell prison that killed 12 people in 1867, and the Fenian Dynamite Campaign of 1881 to 1885, which saw bombs explode in army barracks, on the London Underground, at the offices of the Times newspaper and the headquarters of the Metropolitan Police, in Westminster Hall and in the chamber of the House of Commons.

9. Particularly sinister, as it seemed then, were the international connections of these bombers: a feature also of previous terrorist atrocities including the Gunpowder Plot of 1605, some of whose ringleaders had been educated abroad and whose explosives expert, Guy Fawkes, had served as a foreign mercenary for the King of Spain. Some of the 19th century Fenian bombers had learned their trade in New York, at the Brooklyn Dynamite School, or from US periodicals, published under First Amendment freedoms, such as the boldly-named “Ireland’s Liberator and Dynamite Monthly”. That publication, in precisely the manner of modern propaganda manuals such as Al-Qaida’s Inspire and Da’esh’s Dabiq, contained articles on the manufacture of bombs but urged readers without access to such materials to act by any means available to them: the bullet, the knife, or the “simple sulphur match”.

10.How did it feel to be an adherent of the minority faith? Some good evidence is provided by John Henry Newman, a high-profile convert to Catholicism and the leader of the Oxford Movement. In a celebrated lecture given in 1851, he enquired:

“ … why it is that, in this intelligent nation, and in this rational nineteenth century, we Catholics are so despised and hated by our own countrymen, with whom we have lived all our lives, that they are prompt to believe any story, however extravagant, that is told to our disadvantage … I am not enquiring why they are not Catholics themselves, but why they are so angry with those who are.”

11.And this is what he concluded:

Catholics are treated with scorn and injustice simply because, although they have a good deal to say in their defence, they have never patiently been heard. … [N]o conceivable absurdities can surpass the absurdities which are firmly believed of Catholics by sensible, kind-hearted, well intentioned Protestants. Such is the consequence of having looked at things all on one side, and shutting eyes to the other. … [The Catholic Church] is considered too absurd to be inquired into, and too corrupt to be defended, and too dangerous to be treated with equity and fair dealing. She is the victim of a prejudice which perpetuates itself, and gives birth to what it feeds on.”

TERRORISM, RELIGION AND IMMIGRATION

12.Of course history does not repeat itself: but it can sometimes put the present in perspective. It is hard to pick up a paper or visit a news site without being reminded that immigration, terrorism and a controversial religious minority – though now Muslims rather than Catholics, in Great Britain, at least – are prominent issues today. Indeed alone and in toxic combination, they sometimes seem to dominate the public discourse.

13.Only a fool would play down the seriousness of the risk from terrorism, or the fact that some of it is perpetrated in the name of Islam.

a. Together with the insurrections and civil wars into which it often shades, it kills tens of thousands of people every year in Africa, Asia and the Middle East. The great majority of them are Muslims killed by Muslims. But some are the victims of other religious extremists,vi or of ethnic, separatist or nationalist conflicts in different parts of the world. And others – like the 30 British tourists gunned down on a Tunisian beach last year – are targeted by Islamists because they come from the West.

b. Recent Islamist attacks in France, Denmark and Belgium have reminded us that terrorism is particularly shocking when it constitutes an ideological attack on values that society holds dear: we have seen people killed close to our shores in the past 18 months for satirising religion, for enjoying music, for discussing free speech or simply for being Jewish or happening to find themselves near the political heart of Europe. And in Orlando on Saturday night, we appear to have seen 49 people killed for their sexuality.

c. Of the same character was the slaughter by self-described “cultural Christian” Anders Breivik of 77 people in 2011, most of them associated with a Norwegian political party that in his view was assisting the Islamisation of Western Europe. A reminder that “do it yourself” terrorism can be as deadly as a meticulously coordinated assault; that it can be more difficult to detect; and that militant Islam has no monopoly on ideologies that dehumanise the other and so justify the killing of people who hold the wrong ideas.

d. I heard for myself the fear and apprehension that infected Muslims in the West Midlands in 2013, before police were able to pin the murder of Mohammed Saleem and a sequence of Friday mosque-bombings on the white supremacist, Pavlo Lapshyn.

Far-right extremism does not have the global reach or organisation of militant Islam, and does not kill nearly as many people. But no sensible observer of the current political scene in Europe or America would discount it as a potential threat. The danger of far-right terrorism lies not just in the direct threat it poses to life and property, but in its capacity to operate symbiotically with the Islamist variety, each being used to support the grievance narrative of those who seek to persuade the other that the world is against them and they need to fight back.

15. The scholar of terrorism Brian Jenkins said in 1975 that the aim of the terrorist was “a lot of people watching, not a lot of people dead”. If that
is what militant Islam is trying to achieve in the West, it has been spectacularly successful. Since 9/11, terrorism has killed fewer than 60 people in Great Britain, only two of them in the past 10 years. Even in Spain and France, which have suffered the largest number of casualties in that period, mortality since 2001 has been in the low hundreds. In the United States, terrorist shootings, even after the terrible recent events in Orlando, constitute a small fraction of 1% of firearms-related homicides. But people are certainly watching – and they are afraid.

16.Here is what former Senator Liebermann had to say in December of last year about the threat of radical Islamist terrorism to the United States: he rated it as “the most significant threat” that the American people faced, not only to their security but to their civilisation.

17.And he seems to have been speaking for his country. Asked to list the most critical threats to the US over the next decade, Americans polled by Gallup this year put international terrorism first – ahead of Iranian nuclear weapons, the Syrian conflict, North Korea, global warming, China and Russia.

18.Nor, it would seem, are Europeans so different. A recent Eurobarometer poll asked Europeans which were the two most important issues facing the EU at the moment. Immigration was the runaway leader. But terrorism came in second place, edging out the economic situation.

19.In achieving those spectacular results, the terrorists are assisted by media which have either forgotten that terrorism is “propaganda of the deed”, as the 19th century anarchists put it, or do not care that they are spreading propaganda of the word or indeed of the picture. Here is one example, graphically combining images of medieval execution and the injustices of Guantanamo. Demonstrating that while journalists are not usually terrorist sympathisers, the interests of the two groups can be very closely aligned.

20. Or look at the killing of Lee Rigby: one of 187 murders by knife or bladed instrument that year in England and Wales, but one whose aftermath made it notorious across the world. The murderers did not run away: one of them ensured that he was filmed in the most gruesome pose possible; faithfully reproduced of course on mass media; used for propaganda purposes; provoking fear and defiance – this taken at a march following the killing, and religious hatred – from the same march; and finally vicious polarisation. I’m not sure what the worst thing is about that slide – maybe the 105 likes.

21.Nor do the mass media content themselves with giving the terrorist publicity. They go along also with the terrorist’s broader objective of sowing suspicion, encouraging division and sending integration into reverse.

22.This is hardly new. | Here is the Nazi newspaper Der Stürmer, perpetuating the racist prejudice of the Jew as scheming sexual aggressor. Here, from the Second World War, is a cartoon characterising Japanese Americans as fifth columnists, lining up to collect their packages of explosive. And in the same vile tradition, I would argue, is a cartoon published by the Daily Mail, shortly after the Paris attacks of last November. The image does a pretty effective job of conflating Islam, immigration, the terrorist threat – for one of them is carrying a gun – and, in case we were in any doubt about what to think of them, rats.

23.And I’m afraid politicians, following as so often the media lead, are themselves capable of perpetuating the damaging confusion between terrorism, immigration and Islam. One can think of many reasons why it is good for women in immigrant families to learn English: but must the issue be linked specifically with Muslims and with the fight against Da’esh? And for those using the issue of immigration to argue for Brexit, the stereotypes of the over-industrious Pole and the lazy Romanian have their uses, but lack the popular resonance in the notion of the guntoting, sexually aggressive Muslim, fresh from the Middle East, whose entry is supposedly – though incomprehensibly, at least to me – facilitated by our EU membership.

MUSLIMS IN BRITAIN

24.So remembering Newman’s words about being a Catholic, how does it feel to be a Muslim in present-day Britain? My impressions on that score should be heavily discounted, because they are second or thirdhand. But I do have the privilege of talking not just to British Muslim friends, colleagues and leaders but to other members of Britain’s numerous and varied Muslim communities – a privilege because despite a job title that could almost have been designed to put them off, I find them unfailingly polite, generous and hospitable.

a. They tell me, as they have told a number of surveys, that they feel overwhelmingly British, that they are happy to obey British law
and that Britain is one of the best places in the world – perhaps even the best place in the world – to be a Muslim.

b. They are relatively optimistic about the process of integration, evoking in my mind role models ranging from the Siddiqui family, understated stars of Gogglebox, and Nadiya Hussain, winner of the Great British Bake-Off to the Mayor of London and Mo Farah, the most decorated person in the history of British athletics. Only 20% of British Muslims polled last year for the Today Programme believed that “western society can never be
compatible with Islam”, as against 56% of the general population, readers perhaps of the popular press, who expressed similar views to YouGov at about the same time.vii If it is true, as Channel 4 reported earlier this year, that 20% of Muslims had not been in a non-Muslim’s house over the past year, it might have been pertinent to ask whether anyone invited them.

c. British Muslims are bewildered by the incessant “them and us” headlines of the tabloid press; dispirited by the constant references to terrorism committed in the name of their religion but unconnected with what they see as any true version of it; wary of Government policies which are seen as spying on them or discriminating against them; and alarmed by the hatred and abuse that are directed to Muslims, particularly, as the statistics show, in the aftermath of a major atrocity somewhere in the western world. Perhaps they would agree that Islam, as Cardinal Newman said of the Catholic Church, “is the victim of a prejudice which perpetuates itself, and gives birth to what it feeds on”.

25.And many I suspect would agree with me that Trevor Phillips, former head of the Equalities and Human Rights Commission, was painting an exaggerated picture when he said in a Channel 4 programme earlier this year that British Muslims’ centre of gravity is “some distance away from the centre of gravity of everyone else’s”, that they “basically do not want to participate in the way that other people do”, and even that they constitute a “nation within a nation”. Such conclusions are, perhaps, the product of surveys that focus on areas most likely to show difference,
and ignore the huge amount that we all have in common.

26.When I travel around the country I see inspiring examples of youth clubs and neighbourhoods putting integration in practice, and of schools and NGOs teaching the critical thinking skills that are so important if the false certainties of the fundamentalist are to be rejected or at least seen in perspective.

27.But there is bad as well as good in all sections of society; and it would not be honest to describe British Islam without reference to the fact that
to varying degrees, a minority of its members are profoundly opposed to core values such as democracy, equal treatment, the Rule of Law, diversity, pluralism and tolerance. In extreme cases they may even be prepared to approve violence against that of which they disapprove.

28.The way in which some terrorists who claim the authority of Islam feed off religiously conservative and socially regressive attitudes was recently
expressed by Lord Pannick QC as follows: “The opponents of a liberal society are not interested in science and enlightenment. They know all the answers, or how to find them. They deprecate any study which may challenge their religious beliefs. They believe that women should not be educated, should have no role in public life and must comply with a strict dress code. They advocate, and implement, the death penalty for homosexuals, adulterers, and anyone who leaves their religion, and anyone who publishes a cartoon or other depiction of their God. They cut the heads off aid workers whom they capture, and post horrific videos on the internet. They blow up ancient monuments because they despise any culture other than their own.”

29.Polling suggests that overt support for terrorism is very low: but that disturbingly large minorities are prepared at least in theory to countenance a violent response to those who publish images of the prophet Muhammad, or to so-called apostates who convert from Islam. Opinions of course are cheap, and rarely translate into deeds. But the fatwa against Salman Rushdie, the Charlie Hebdo killings, attitudes in Pakistan to Ahmadiyya Muslims and the hacking to death of secular bloggers in Bangladesh, each of which has echoed, faintly or otherwise, in Britain, are completely inimical to any notion of liberal values or universal human rights.

30.Yet shockingly, many of those “opponents of a liberal society” grew up in one. The great majority of terrorists convicted in Great Britain over the
past 15 years have been bred here, including the London bombers of 2005. One of them, Shehzad Tanweer, worked in a fish and chip shop in his native Yorkshire, and played his usual game of cricket on the evening before he killed seven people, and himself, on a Circle Line train.

31.Mental illness, and social and economic exclusion, are relevant factors in some cases but by no means a sufficient explanation. There is a substantial minority of university students and graduates among British perpetrators of terrorist acts, not dissimilar to their representation in that age cohort generally. They include: a. the underpants bomber Umar Farouk Abdulmutallab, a graduate of University College London; b. Roshonara Choudhry, who stabbed the MP Stephen Timms shortly after dropping out of King’s College London; and c. Tarik Hassane, the Briton studying medicine at the University of Khartoum, who pleaded guilty earlier this year to plotting Da’eshinspired drive-by shootings in London with Suhaib Majeed, a physics student who was convicted by a jury in April. Abdulmutallab and Majeed were reported to have been, respectively, the President of the University College Islamic Society and the Chairman of the King’s College Islamic Society.

32.So British Muslims face Islamophobia: but they also have other problems.

a. The vast majority, including those who could be described as religiously conservative, want nothing more than to look after their families and contribute to the life of the country where almost half of them now were born.

b. But there comes a point where religious conservatism shades into socially regressive attitudes – in particular towards women and
those who depart from rigid sexual norms, but also towards those of other faiths or of none.

c. And those attitudes sometimes find coercive or violent expression – whether in terms of FGM, forced marriage, domestic violence, sexual abuse, so-called honour-based violence or terrorism. None of these problems are unique to Muslims; some are cultural rather than religious in origin; and domestic violence and sexual abuse are extremely widespread. But the most acute of them, or at least the highest profile, is terrorism perpetrated in the name of Islam.

33.The Prime Minister last year described extremist ideology, by which he meant Islamist extremism, as the “struggle of our generation”, adding that we must pursue this struggle in the spirit with which we “faced down Hitler” and “defeated Communism”. Not everyone would go so far as to characterise Islamist extremism an existential threat, even when it is manifested through sporadic acts of terrorism on western soil. Nor would it be right to characterise the transition from non-violent to violent extremism as any sort of automatic conveyor belt – though there are certainly many terrorists who have made that journey. But there can be no doubt that when behaviour is fuelled by extremist ideology, adverse consequences can follow both for community integration and for public safety. What should we do about it?

KNOWING WHAT TO TOLERATE
34.Central to this dilemma is the language of tolerance. Tolerance is not the most inspiring of virtues. It is practised, after all, as putting up with
things, or with people, that we don’t really like. But as expressed in the phrase live and let live, it is something we have traditionally been good at in this country. And it is a gateway virtue: a staging post to the higher objectives of integration and trust.

35.Too much tolerance can be as dangerous as too little. Some things need to be tolerated, and some things need not to be tolerated. The question is, which things fall into each category?

36. You will be relieved to hear that no comprehensive answer to that question will be given this evening. But I will suggest a couple of guiding principles, neither of which is always appreciated as widely as it should be. I call them confidence and humility.

Confidence
37.Confidence consists, first of all, in knowing what we stand for. As the nation state gives way to what Philip Bobbittxi has described as the market state – one whose purpose is not to nurture a national identity but simply to ensure an adequate life for those who at any given time find themselves within its boundaries – moral relativism takes over and bright lines become harder to draw. People resent newcomers who do not conform to their customs, but are unsure which of their values they are allowed to defend, and which must give way to the perceived demands of multiculturalism or human rights. Too often, the wrong answers are found. Perhaps the newcomer will be told that he must fully assimilate to be accepted. Or, conversely, a blind eye may be turned to practices that ought to be firmly clamped down on.

Democratic values
38. The starting point, for me, is that this country stands for democratic values. Unusually, and in my view regrettably, the United Kingdom lacks a written constitution to spell them out. But the nub of the matter is that the UK is a democracy founded upon the rule of law.

39.Inherent in the rule of law, as classically defined by the great judge Lord Bingham, is adequate protection of internationally guaranteed fundamental human rights.

40.But vital as fundamental rights are, they can in important respects be qualified in the interests of democracy – which means, in this context, far more than simply the rule of the majority. As the European Court of Human Rights has often said, initially in cases argued by British lawyers, there can be no democratic society without “pluralism, tolerance and broad-mindedness”.

41.To see what this means in practice, take the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention. There is an absolute right to believe what you like, to change that belief, and to share your beliefs with like-minded people. But you may be prohibited from putting your beliefs into practice in a way that impinges on others, when it can be established that prohibition is necessary in a democratic society.

42.There are frequent reminders from the courts that theocracy is not compatible with democracy, and that to say “It’s my religion” is not enough to win a reprieve from the law of the land:

a. Our own senior court, then known as the House of Lords, held in 2005 that the state could prohibit the use of corporal punishment
in private schools, notwithstanding the beliefs of some Christian teachers and parents in its moral value.

b. The Court of Appeal, differing from the High Court, required my former client, Shambo the sacred Welsh bullock, to be slaughtered because his TB diagnosis made this necessary in the interests of public health, notwithstanding Shambo’s religious significance to his Hindu owners. (When I commiserated with them on Shambo’s death, they were able to console me: most probably, they told me, he had already been reincarnated.)

c.
And in 2014 the European Court went so far as to rule, by a majority, that the French Government was justified in banning the wearing of the niqab or full-face veil in public places, in the interests of what was described as “the right of others” – in other words, the non-niqabi people of France, “to live in a space of socialisation which makes living together easier”. Governments were not obliged to ban the niqab, of course: there are no plans for such a wide-ranging prohibition in the UK, and for myself I rather hope there never will be. But France was entitled to do so in the interests of maintaining a democracy in which people “live together”.

43.An earlier and even more striking case concerned the dissolution by the Turkish Government of a political party whose poll ratings were such that it had (at the time of dissolution) what the European Court of Human Rights described as “a real potential to seize political power”. It was dissolved because it had a policy of introducing shari’a law for Turkey’s Muslims. The Court found no violation of the freedom of association, commenting that “Shari’a is incompatible with the fundamental principles of democracy”, and that contracting states were entitled to oppose “political movements based on religious fundamentalism”, in the light of their historical experience.

44.As the Court pronounced: “No one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society.” Or in the even pithier paraphrase of a United States Supreme Court opinion from 1949: “Democracy is not a suicide pact”.
45.Once again, you are not obliged to ban political parties that seek to use democracy in order to subvert its values. We survived the Cold War without banning the Communist Party: and a good thing too, since as another American judge once put it, “the power of reason as applied through public discussion” is preferable to “silence coerced by law”.

46.But these cases are a reminder that where democratic values are truly under threat, tolerance has its limits. Islam must be tolerated in the same way as other belief systems: but in return, as Matthew Wilkinson of the Cambridge Muslim College has written, it must adapt to being “one legitimate faith among many legally equivalent faiths”, with the Shari’a existing as “a code of personal religious conduct rather than constituting the legal framework for the whole or even part of society”.

47.These cases are also a corrective to those who falsely claim that human rights tie our hands behind our backs by requiring us to tolerate the intolerant, however threatening. Rather than hamper the fight against terrorism and extremism, they underline its legitimacy: a point underlined by – on my count – six successive judgments of the European Court of Human Rights, since 2010, which have upheld different features of the powers used against terrorism in the UK.

Application of the law
48.There is a second aspect to confidence: being unafraid to apply the laws we have. For various reasons, many of them understandable, that has not always been the case.

49.In the 1990s and afterwards, strong traditions of individual liberty, combined with ignorance or complacency, led to the excessive tolerance of what frustrated French officials dubbed Londonistan: the freedom of men such as Abu Qatada, Omar Bakri Mohammed and Abu Hamza and their followers to come to Britain and incite murder, radicalise the young, finance violent jihad and even train people for it on British soil.

50.We should never discount the risk of racism or discrimination against Muslims by authorities, including police forces, that are overwhelmingly white and non-Muslim. But their behaviour may also be distorted by fear of being accused of racism. An independent report of 2014 into child sexual abuse and trafficking in Rotherham by men of Pakistani heritage reported councillors as saying that they had not drawn attention to what was going on, because to do so could be perceived as: “’giving oxygen’ to racist perspectives that might in turn attract extremist political groups and threaten community cohesion.”

The consequence of this misplaced fear of encouraging racism may have been not only the prolongation of organised abuse that affected, at a conservative estimate, 1400 victims over 16 years, but the worsening of precisely the community cohesion that the councillors had been trying to protect.

51.In relation to similar long-term abuse in Rochdale, the MP Ann Cryer told the BBC that despite her requests, “neither the police nor social services
would touch those cases…I think it was they were afraid of being called racist.” In 2015, the Greater Manchester Police apologised for their failure to investigate the allegations more thoroughly.

52.Police and other authorities naturally wish to keep up their contacts in local communities – contacts which they find useful in everything from managing community tensions to delivering the Prevent strategy. But this must not come at the expense of enforcing the law without fear or favour. The vulnerable people in any community may be precisely those for whom the “community leaders” do not speak, those described by Maajid Nawaz as “minorities within minorities”: the ex-Muslim, the woman who chooses not to dress as her family wishes, the sexually unorthodox, the Muslim who dares speak out about malpractice.

Humility
53.The balancing principle to confidence is humility: an acceptance that there are limits to what the state can or should do, and positive dangers in seeking to do too much.

54.In the 1850s, where we began this evening, there was no law against terrorism or incitement to religious hatred, only the most basic of protection against discrimination, no apparatus for state surveillance, no International Covenant or European Convention of Human Rights, no such thing as a cohesion, integration or counter-extremism strategy. The vast growth over the past 100 years in government, in legislation and in popular expectations of both, have furnished legal and policy levers whose existence could not have been dreamed of in those days. But that does not mean that all thse levers are useful, or should be used. Humility allows us to see that some of them may not work, that some may make things worse; and that sometimes – as, happily, with the antiCatholic prejudice that was so strong in England in the mid-19th century – problems recede not because anyone solves them but because of the passage of time and, very often, the intervention of new and more pressing problems.

55.The battle for hearts and minds is an area in which actions, if not correctly judged, are particularly liable to backfire. Once you seek to apply the law to conduct that poses no direct threat to the life, wellbeing or property of others, you begin to intrude into the way that people who would not normally be classed as criminals live their everyday lives. If you are not very careful, those people will perceive you as spying on them; picking on them; penalising activities that cause no harm to others; challenging the core tenets of their faith or their personal morality. And if things get to that point, you may actually be worsening the problem you are seeking to cure.

56.The difficulty here is not with the counter-terrorism laws, even though they feature a number of “precursor crimes” which can be committed before there is any attempt, conspiracy or incitement to commit an act of terrorism: these include encouragement of terrorism, direct or indirect; disseminating terrorist materials; preparing acts of terrorism; and attending a training camp. Nor, even, is the problem with the Public Order Act 1984, whose most oppressive feature – the criminalisation of insulting words likely to cause alarm or distress, which resulted in the conviction of a street preacher whose only offence was to hold a placard pronouncing homosexuality to be evil – was repealed in 2014.

57.Rather, and counter-intuitively perhaps, controversy tends to attach to well-intentioned measures with a safeguarding purpose. I will mention three.
Use of the family courts.

58.The first is a remarkable development of the past two years: the spate of cases in which child care authorities have sought to use the Family Division of the High Court to protect children at risk of radicalisation.

59.Most straightforward are the cases in which the court has agreed to a measure which will prevent children from going to Syria or being taken there: normally, making the child a ward of court and removing his or her passport. In some cases, the court has gone further: preventing the whole family from travelling out, or ordering them to be brought back after they have left. But in one case, the court concluded that the only way to protect a 16-year-old girl who had been intercepted prior to take-off was to remove her from her devious and highly radicalised parents into institutional care. Comparing the risk from their extremist beliefs to the risk of sexual abuse, the Court held: “If it were a sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.”

60.I don’t dispute that analysis. But for the State to remove a child from its parents because it does not like the ideas that they are planting in the
child’s mind is at least deserving of debate. As the Supreme Court Justice Baroness Hale said in a recent lecture (and I am grateful to her for pointing me to these cases), this is an important development, and one to be treated with great caution.

Prevent
61.Humility is in order also when it comes to the Prevent strategy: the Government’s programme to combat radicalisation in environments ranging from the nursery school to the prison. Prevent has already been reformed, in 2011 when its range was expanded from violent extremism to non-violent extremism, and in 2015 when a wide range of public authorities were placed under a statutory duty to “have due regard to the need to prevent people from being drawn into terrorism”.

62.One might have thought that safeguarding of this nature was an appropriate task for Government at least to attempt. But in my experience, Prevent now attracts more suspicion from Muslims than all the counter-terrorism laws put together. Particularly controversial is the application of the Prevent duty in schools, which if their evidence to me is to be believed, has caused risk-averse teachers to close down healthy discussion of terrorism in school and risk-averse parents, worried about what their child might say the next day, to do the same thing at home. Also subject to criticism has been the Prevent guidance to universities, which requires them carefully to consider whether views expressed by a visiting speaker “constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups”, and if so, requires them to cancel the event unless they are “entirely convinced” that the risk can be “fully mitigated” by other means: a high hurdle indeed.

63.I do not review the operation of Prevent. I observe the suspicions that attend some of its aspects, but don’t pass judgement on whether they are the product of poor implementation, whether they have been stirred up by people who are trying to promote grievance, or whether they are simply the product of insufficient engagement with those affected.

64.Some have argued that Prevent needs to be replaced, reformed or removed altogether from the counter-terrorism space and treated instead as simply one aspect of safeguarding, along with initiatives against gangs, substance abuse, sexual exploitation and so on. Whether that is the future or not, humility suggests that there should be more transparency around Prevent, more consultation with the communities to whom it applies, and – I would add – regular independent review of the sort that is already provided for the counter-terrorism laws.

Counter-Extremism Bill
65.Finally, I mention the long-promised Bill aimed at countering extremism. As initially trailed in the Queen’s Speech before last, this Bill was to
provide for a number of coercive measures by which “extremist activity” could be curtailed: banning orders for extremist organisations; extremist disruption orders to restrict the harmful activities of extremist individuals; and closure orders, to close down premises used to support extremism.

66.My concerns about this proposal were expressed in a report of last September, in the form of 15 questions that I suggested Parliament might want to ask about it. I was concerned by the breadth of the concept of extremism, and the effect of such a law on people who were not its targets. As I argued:

If it becomes a function of the state to identify which individuals are engaged in, or exposed to, a broad range of extremist activity, it will become legitimate for the state to scrutinise (and the citizen to inform upon) the core exercise of democratic freedoms by large numbers of law-abiding people.”

67.The Bill was promised again in last month’s Queen’s Speech, though with with the welcome rider that there would be consultation on at least some aspects of it. We will see what comes of that. Only by tempering confidence with humility, I would suggest, do we stand a chance of winning the struggle to unite people of good will in rejecting the corrosive and dangerous elements on the extremes.

June 20, 2016

Magna Carta & Australia – HE Alexander Downer

This Magna Carta Lecture was delivered by HE the Hon Alexander Downer, Australian High Commissioner to the United Kingdom, at Lincoln Cathedral; Wednesday 1 June 2016.

• It is both an honour and a pleasure to be invited by Lord Cormack to give this year’s Magna Carta lecture.

• I follow in the footsteps of some very eminent and distinguished speakers, in what has become a fifteen-year tradition, including:

o Professor Lord Norton of Louth

o Lord Phillips, First President of the Supreme Court

o Professor Nicholas Vincent, and

o Lord Judge, former Lord Chief Justice.

• As we all take in our beautiful surroundings, I must start my lecture by acknowledging the historical significance of Lincoln Cathedral—our host for this evening.

• It has been said that ‘in a sense, Lincoln is where Magna Carta starts and ends.’

• Indeed, Lincolnshire’s Cardinal Archbishop Stephen Langton, who studied at the schools of Lincoln Cathedral, is credited with influencing the terms of Magna Carta.

Both Stephen Langton and the Bishop of Lincoln, Hugh of Wells, were present at Runnymede.

• Now, 800 years later, Lincoln Cathedral has one of only four surviving copies of the original 1215 Magna Carta, which I understand is now securely displayed at Lincoln Castle. Two are held at the British Library and the other, at Salsbury Cathedral.

• This leads me to reflect on how Australia came to own a 1297 version of Magna Carta—it is an extraordinary story.

• In 1936, after 639 years, our version was discovered by a schoolmaster in a desk at King’s School in Somerset.

• Fortunately for Australia, the governors of the school decided to sell it, to raise much-needed funds.

• The British Museum could not meet the asking price and only offered to pay 2000 pounds.

• The school’s preference was for it to be passed on to a British dominion —so Australia had a ‘head start’ over American interests.

• We understand that it was offered to our National Library’s London Office, via Sotheby’s.

• Our then Prime Minister, Robert Menzies supported the purchase, and even agreed to seek funds from prominent friends of the Library in London, such as Howard Florey and Lord Baillieu, via Sir Leslie Boyce, the Australian-born lord major of London.

Click here to read the entire speech.

December 18, 2015

Words from the Chancellor of the Exchequer

The Rt. Hon. George Osborne, Chancellor of the Exchequer.
The following was read to the final meeting of the Magna Carta 800th Anniversary Commemoration Committee on the 3rd December, 2015.

I would like to congratulate Bob Worcester, Mark Gill and the Committee for their excellent stewardship of the 800th anniversary celebrations.

Ma‎gna Carta lies at the heart of British values – liberty, justice and fair play – values which this country has exported all round the world.

I am pleased that the Treasury has been able to play its part in making the anniversary a success, supporting over 100 projects and levering in a further £3 1/2 million of private and community finance on top of the £1 million Treasury grant.

But it’s the energy and enthusiasm of volunteers up and down the country – in villages, towns and cities – which have demonstrated Magna Carta’s contemporary relevance and resonance.

I very much hope members of the committee will continue to promote and nurture the legacy of Magna Carta so that our descendents will ensure that the 900th and 1000th anniversaries are as great a success as that in 2015.

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 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 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

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

May 6, 2015

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.

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.

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.

January 20, 2015

Ambassador Barzun: Remarks at Magna Carta Guildhall Dinner

HE Barzun, Matthew (US Ambassador to the United Kingdom), Speech at Magna Carta Charity Dinner, The Guildhall, City of London Corporation, 12th January 2015.

Click here to watch the video.

‘Foreign Secretary, Lord Dyson, Sir Robert, my Lords, ladies and gentlemen. Good evening …

I’m going to try to follow the advice of one of the Foreign Secretary’s predecessors, Lord Reading, who encouraged speakers to “always be shorter than anybody dared to hope”.

What a great British way of putting it.

A Baptist preacher from my adopted home-state of Kentucky made the same point in a different way: “Remember the five Bs: Be Brief, Brother, Be Brief.”

Thank you so much for making me a special part of this special evening.

And thanks to you, Sir Robert, and you, Lord Dyson – to the Trust and to all the members of the 800th Anniversary Committee for your leadership in this momentous year.

A year in which we shall attempt to answer definitively Tony Hancock’s profound question we hear quoted so often: “Does Magna Carta mean nothing to you? Did she die in vain?”

Contrary to his fears, Magna Carta did not, of course, die but lived. Lived to inspire future generations – not least in America.

One of those was my great x10 grandfather, John Winthrop, who in 1630 left behind his home in Suffolk for a new life in a city he named Boston.

He knew that a stable society was built on a fundamental law, so as Governor of Massachusetts he called for one that was “in resemblance to a Magna Charta”.

And a century or so on from then, it was a bunch of rabble-rousing colonists in America — some of whom were English-educated lawyers — who took that idea … how do I put this diplomatically … a few steps further.

Perhaps, though, Magna Carta found its most poignant expression 730 years on from Runnymede — at the end of World War II and with the discovery of Nazi atrocities.

In 1945, a question hung over what the world should do with those responsible.

As you can imagine, there were many loud voices demanding instant retribution, including summary execution.

Instead, we — the Allied forces led by America and Britain — resolved together to put the leaders of Nazi Germany on trial.

Think about the magnitude of that decision: To let the rule of law dictate our response to the most grotesque humanitarian catastrophe in history.

The chief U.S. prosecutor at Nuremberg, Justice Jackson captured it best in his now-famous quotation:

“That four great nations — flushed with victory and stung with injury — stay the hand of vengeance — and voluntarily submit their captive enemies to the judgment of the law —– is one of the most significant tributes that Power has ever paid to Reason.”

We recognize similar dilemmas in our own time, and the rule of law always shines above us as the lodestar to our most noble values.

Values that — as the Foreign Secretary rightly pointed out — not only strengthen us but protect us.

President Obama sums it up: “Time and again,” he said. “Our values have been our best national security asset – in war and peace; in times of ease and in eras of upheaval.”

This legacy of Magna Carta is what we generally think about when that sacred document is mentioned. And it is wonderfully heady stuff.

But — and this is the point I want to emphasize tonight — there is an even richer aspect to the Magna Carta story: and it’s this: That 800 years ago it was all pretty earthy stuff.

Magna Carta is not a theoretical tract.

First & foremost it is a sensible, practical document dealing in concrete remedies for real, daily abuses: hence the fishweirs, the scutage, the escheats, and the disafforestation.

Maybe there were traces of the heroic.

But in reality these were selfish, power-hungry, angry, conniving, antagonistic barons – united mostly by their mistrust of King John; and his policy of taxation without representation.

To put it even more bluntly, Magna Carta was about rich & powerful guys cutting a deal with an even richer and more powerful guy.

There was little intention at the time to extend its provisions much wider, even though it did in part.

In short, Magna Carta in its original form is a confusing, bubbling soup — or mash (if you will) — of fermenting anger, distrust, hope, faith, belief, passion, rights and wrongs.

What we have done through the ages is distilled down that mash – little by little — and refined it to its core principles.

The legal scholar A.E. Dick Howard reminds us of this process in his book on Magna Carta.

How we find ourselves today saying things like “as it says in Chapter 39 of Magna Carta” as though it was written in nicely ordered chapters by authors conscious of compiling a “great work”.

In fact, back then there were no chapters, nor even the name Magna Carta. That all came later.

And as we see with the 1297 examplar here at Guildhall – Magna Carta became a living document.

A text that through different iterations plotted the fits and starts of civilization’s progress.

To me, this messy, herky-jerky, evolutionary story of Magna Carta is just as inspiring — and can be especially instructional for our times.

Indeed, this background is nearly as useful as the principles themselves as we seek to promote the rule of law.

Consider the conflicts and disputes in today’s hotspots around the world.

Too readily we see only the factions & frictions; the fermenting of years of hostility and hurt and hatred.

As such, we can, let’s be honest — myself very much included — get a bit high & mighty and talk only in Abstract Terms, in capital letters from our safe perches in capital cities.

And sometimes what we see is indeed appalling.

But we should probably be quicker to regard these situations with a little more recognition and understanding.

Is it all just a toxic brew?

Or shouldn’t we consider the possibility that it is instead the beginning of a distillation process?

Without such recognition, it is all too easy to throw up our hands and give up our hopes when the heady ideals don’t match the earthy realities.

The enduring truth is that as the revolutions or crises fade from the headlines what is required is often simply getting down to it: Doing the hard work of cutting deals, correcting them, keeping to them.

There are nations right now at the beginning of that process.

And with them in mind, we can look around ourselves at this moment, in this room, and be grateful to be farther along it.

So: as we leave here tonight and talk enthusiastically about Magna Carta and its commemoration in the run-up to June and beyond, we are right to hold up its essence — this distillate we have developed.

We are right to preach and practice these values.

We are right to be heady and not just earthy.

As one my favorite British authors C.S. Lewis put it: “Aim at heaven and you will get earth thrown in. Aim at earth and you get neither.”

And so let us be upstanding as we raise our glasses in thanks….

To the barons of 1215 — the accidental, dysfunctional, yet wonderful parents of Magna Carta; to the generations after — who distilled their ideas into the cultures, customs, and constitutions we have so fortunately inherited; and to all those engaged today in the hard, daily grind of making good on that inheritance wherever they are, in whatever way they can.’

January 13, 2015

Foreign Secretary Philip Hammond MP at Magna Carta 800th Anniversary Dinner

Rt. Hon. Hammond, Philip (Foreign Secretary to the United Kingdom), Speech delivered at Magna Carta 800th Anniversary Dinner, The Guildhall, City of London Corporation, 12th January 2015.

Click here to watch the video.

Lord Dyson, thank you for your introduction earlier and mark for the excellent dinner which I hope will fuel everyone through this brief interlude… until some pudding-shaped relief arrives in due course.

It is said that Winston Churchill once sent his pudding back to the chef with the complaint that it “had no theme”…

I hope my remarks do not fall into the same trap if only because, in the “Magna Carta”, we have a theme as rich as the finest of desserts.

As Foreign Secretary, I recognise the Magna Carta is a major part of Britain’s “brand” as the home of democracy and the rule of law.

But it is as someone has already remarked this evening as a Member of Parliament for the constituency where it was sealed, that the Magna Carta has a particular claim on my attention. From time to time I find myself placed in the invidious position of being asked to name a favourite place in my constituency.

I can tell you this is not a question any MP would relish answering.

But I am readily able to nominate Runnymede: a special place for its historic significance but also because, despite its proximity to the M25 and to Heathrow, the meadow of Runnymede retains a surprising quality of tranquillity & beauty.

And thanks to the vision and work of the American Bar Association, whose 800-strong delegation I look forward to welcoming there in the Summer, it houses a fitting memorial designed by Sir Edward Maufe to that landmark event which we remember tonight.

But the MP for Runnymede shouldn’t be allowed to monopolise the Parliamentary interest in the events of 1215. Any self-respecting Member of Parliament should be focussed on the significance of Magna Carta in the evolution of our Parliamentary democracy.

Indeed, shouldn’t any citizen in any democracy anywhere, at least have the opportunity to become familiar with the role Magna Carta has played in the evolution of democracy to the present day?

Creating these opportunities is what the Magna Carta 800th Anniversary Committee is doing so expertly. I delight to highlight, in particular, the contribution of Sir Robert Worcester, over the twenty-one years he has been a trustee of the Magna Carta Trust, and now as the spearhead of these commemorations.

I also want to recognise the important support over many years given to the Magna Carta Trust by the Corporation of London and to thank the Corporation for hosting us tonight in the magnificent surroundings of Guildhall and treating us to a private view of its 1297 example of the Magna Carta, a reminder of the role that London has played in the story of Magna Carta from the very start. And I applaud to the work going on in Surrey County Council, the National Trust and Runnymede Borough Council to ensure that Runnymede itself will be even more memorable to visitors in the future.

I am delighted to be speaking tonight alongside His Excellency, Matthew Barzun, the US Ambassador to the Court of St James. Your presence, Ambassador, is a reminder that Magna Carta has played an important role in the constitutional, social, political and legal development, not just of this country, but also of the United States of America. You could say the United States was one of the Magna Carta’s first great export successes. And if I may in the true spirit of TTIP, we are delighted that the US is now so closely engaged with us in seeking out new markets for the values it represents.

But exactly what is it that makes an 800 year old, hotchpotch of a document worth commemorating? Not that it mandates the removal of all fish weirs from the Thames and the Medway, clearly. Nor, surely, the provision preventing men from being arrested or imprisoned on the testimony of a woman, unless the case involved the death of her husband? In fact, a cursory glance at the specifics might suggest that much of Magna Carta actually has very little to do with our present day understanding of the principles of Democracy and Human Rights.

Its enduring significance lies in two themes – money and justice – which run through the document.

It was sealed at a point in time when the barons had been pushed to their limit by a King who had used his arbitrary power to extort and appropriate their property, more or less at will. When the rebels arrived in Runnymede they came determined to circumscribe the power of the monarch. And they must have been emboldened by their experience in London, which effectively had joined the rebellion by opening its gates to the rebel barons, so setting an example for other towns to follow.

Indeed some might say that Magna Carta’s origins in this confrontation between a King who ignored the economic and political interests of those from whom he derived his power are a powerful reminder to modern politicians of the dangers for a State which tries to live beyond its means and disregards the interests of those who fund it.

Of course, the settlement between monarch and barons was short-lived. But the ground-breaking concept of “equality before the law”, and the understanding that Magna Carta inspired about the relationships between State, the individual and justice, has endured… An understanding that power is not to be exercised in an arbitrary and unconstrained way; that the State is answerable to its citizens; that there must be due process… In short the “rule of law”: the most important of the principles that underpin the strong institutions and accountable government on which this nation and many others have built their success. And upon which long-term sustainable economic and political success of nations still depends – wherever we look in the world.

For where political competition, rule of law, and free speech are lacking, social stability will be vulnerable at best, and absent at worst. And without these vital nutrients the ground will not provide a fertile medium in which innovation and entrepreneurialism can take root – and prosperity can flourish. Conversely, where societies can begin to nurture entrepreneurialism and economic development, the demand for greater rule of law and personal freedom typically grows. In other words, the rule of law, good governance and economic success are mutually reinforcing.

Our Prime Minister has described this insight as the “Golden Thread” that enables a nation to thrive. And that provides a model for those not yet thriving, but aspiring to do so.

In our foreign policy, promoting this Golden Thread of rule of law, strong institutions and accountable government should not be understood as token altruism, tacked on to an otherwise morally- neutral foreign policy. The foreign policy of a democratic nation must have a single, unifying goal: the relentless pursuit of the long-term enlightened national interest – that is, the interests of its citizens, present and future.

But that is not to suggest that the projection of our values is relegated to the margins of foreign policy making. On the contrary, the rule of law, good governance, and the accountability that rests on equality before the law and freedom of speech… these are the building blocks of successful societies and the very expression of our national self-interest.

And since successful societies are the building blocks of the global security and prosperity to which our nation aspires, so the rule of law, good governance, and accountability are fundamental enablers of our own national security and prosperity objectives. So that “enlightened national interest” involves an understanding that where we can contribute to better governance and the rule of law in other countries we will be enhancing their stability and development and so enhancing our own security and prosperity.

And reflecting on the history of Magna Carta can guide any democracy which seeks to uphold the rule of law across the world.

First, we should remember Magna Carta was not a big bang moment when out of nothing a free and just society came into being in this country overnight. Rather it was a critical step on an incremental process towards parliamentary democracy as we know it. (Witness, for example, the huge time lag between Magna Carta and universal suffrage in this country or between the US Constitution which it inspired and the repeal of segregation laws in the United States.) So we should be measured in our expectations and patient wherever evolutionary reform is in train… so long as the direction of travel is the right one.

Secondly, Magna Carta has, through the ages, shown a capacity to inspire beyond its borders. In India, the world’s largest democracy and throughout the Commonwealth it has made its presence felt. In the US, where its image adorns the great doors of the Supreme Court, Magna Carta provided inspiration for the founding fathers. And as the world recovered from the trauma of World War II, Eleanor Roosevelt heralded the 1948 Universal Declaration of Human Rights as an “international Magna Carta”. In its preamble the Declaration clearly reflects the spirit of the ancient document as it warns: “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.

So the history of Magna Carta teaches us that its values are …incremental in their establishment, …universal in their relevance, …and adaptable in their application.

This has three implications for how we should approach the promotion of Magna Carta principles around the world. First, we should aim primarily to inspire by example. As Gladstone said, the first principle of good foreign policy is good government at home. We must constantly be working to address the deficiencies of our own systems if we want to be credible in urging other countries to emulate them.

Secondly, while a body of international law inspired by Magna Carta prescribes what are near universally accepted standards, we should not seek to impose one-size-fits-all solutions on other nations. We must recognise that democracy and the rule of law takes time to take root; and that its precise form will reflect where a nation is on its development pathway and the culture and the traditions which make it unique. That is the approach taken by the Westminster Foundation for Democracy, which the Government funds, to strengthen parliaments, political parties and civil society around the world – sharing the UK’s own experience and expertise, while recognising that our experience cannot simply be grafted onto a foreign culture.

Thirdly, in any one country we should above all concern ourselves with the trajectory that political and judicial development is taking. Where it is pointed towards better governance and greater adherence to the rule of law, we should ask ourselves, can we exert a material influence, can we work with the grain? And we should see an economic, as well as a political challenge: how can we target our development assistance to support the emergence of the kind of open government and rule-of-law based societies that enable long-term economic success? And where countries are heading in the opposite direction, we must have the courage to say so. Not sitting in judgement, but speaking candidly, as would any individual concerned that their neighbour is acting in a way contrary to his own interests and those of the neighbourhood as a whole, warning of the consequences of turning one’s back on the lessons of 800 years of history.

But we didn’t build our system in a day – and when we urge others to adopt it, we should pause to remember that with appropriate humility. The road from Magna Carta to our modern democracy is surely the greatest (if perhaps the most extended) illustration of the virtue of evolution, over revolution. So in 2015, both as Foreign Secretary and as Member of Parliament for Runnymede, I am committed to ensuring that the legacy of the 800th anniversary commemoration of Magna Carta is local, national and global in its reach.

As Patron of the Egham Museum, I am proud of the outreach work the museum is doing to bring learning about Magna Carta to schoolchildren across my constituency. As a member of the Government I am proud of the ‘surprising’ £1 million grant we have made to support the 800th Commemoration.

And as Foreign Secretary I am proud to be able to tell you that the FCO’s network of Embassies is already playing a part in supporting the Magna Carta commemorations in the United States, where the Hereford Magna Carta had a well received exhibition in Texas last year and – the Lincoln Magna Carta – one of only four 1215 originals – is on display in the Library of Congress. And our High Commissions across the Commonwealth and our Embassies worldwide will be amplifying the messages of the Magna Carta 800th Commemoration in their public diplomacy, drawing on the impressive educational and historical materials that organisations around the UK are generating under the leadership of the Magna Carta Trust. So it may be 800 years old, but it is as powerful a representation of the values that underpin our nation, as it has ever been.

Magna Carta, a Great British brand, timeless… priceless… class-leading… a top export of Britain’s knowledge economy: available open-source… no copyright… no patents. Its codification of rights and responsibilities… the foundations of our prosperous, vibrant and, in the end, democratic society… available free to any nation that aspires to a more prosperous future.

Long may Magna Carta and its principles flourish…

Let us celebrate it as Britain’s gift to the world…

…and an unrivalled inspiration to the defence of our collective liberty.

September 29, 2014

Magna Carta and Its Influence on Constitutional Matters and Human Rights in the 21st Century

Worcester, Sir Robert, Magna Carta and Its Influence on Constitutional Matters and Human Rights in the 21st Century, The Freedom Association, Birmingham UK, Monday 29th September 2014.

Good afternoon

I’d hope to cover three things in my talk this afternoon:

• Why me, why now?

• Why are you here?

• Why commemorate Magna Carta at all?

Why me?

Growing up in America I had a pretty thorough schooling in English history, English literature and not least English cinema (that was before television), which began with the Angles, Saxons and Jutes, then 1066 and all that, in 1215, the Great Charter, later Magna Carta.

From an early age it was “Good” King Richard the Lionhearted, “Bad” King John “Lackland” (and Robin Hood and his merry men, Little John, Friar Tuck, Will Scarlet and all), Henry VIII and Elizabeth the Virgin Queen, Shakespeare, 18th C. Georgian elegance in costume, in architecture and music. And as a teenager, the Ealing comedies, Lavender Hill Mob, Kind Hearts and Coronets, Whisky Galore, and the rest. Must have seen them all, and some four or five times.

I grew up with the belief that ‘the sun never sets on the British Empire’.

And did I collect stamps from all over the British Empire!

All Americans knew then that George Washington, John Adams, John Jay, Benjamin Franklin and nearly all the Founding Fathers were Englishmen (Alexander Hamilton was a Scot).

On my first visit to Britain, in 1957, I was a serving officer in the US Army Corps of Engineers, returning to America to be discharged after serving in Korea, my tour of duty completed.

My first day in London I had planned to go to the British Museum to see two things, the Magna Carta and the Rosetta Stone, which to me represented the two icons of civilised society: the rule of law and communication outside the village.

I became a Trustee of the Magna Carta Trust 21 years ago (when I became Chairman of the Pilgrims Society), the Chairman of the Trust, by Charter was the Master of the Rolls, first the late great Tom Bingham, Lord Bingham, then Lords (Harry) Woolf, (Nicholas) Phillips, (Anthony) Clarke, (David) Neuberger and now (John) Dyson, all distinguished jurists. First under Lord Neuberger and now Lord Dyson, I now serve as Deputy Chairman of the Trust.

It was Tony Clarke and David Neuberger who ganged up on me and gave me responsibility for organising the 800th Anniversary Commemorations.

How could I refuse?

So that’s why I’m here, and why now.

This is also largely the reason for the existence of the ‘Special Relationship’ that bonds my two countries, Britain and America.

As President Obama observed in 2011 in a speech to the British Parliament: “our system of justice, customs, and values stemmed from our British forefathers”.

And President Obama said at Parliament:

“Our relationship is special because of the values and beliefs that have united our people throughout the ages. Centuries ago, when kings, emperors, and warlords reigned over much of the world, it was the English who first spelled out the rights and liberties on man in Magna Carta.”

Why are you here this afternoon?

You believe in freedom. When I mention Magna Carta to people who believe in freedom anywhere in the world, eyes light up. I’d like to start by testing your knowledge of Magna Carta? Who can tell me where the Magna Carta was signed? How many agree?

There are many myths which surround the Magna Carta. That it was only a fight between the barons and the King.

It certainly was, but not only that.

It was the beginning of the spread of modern democracy. Magna Carta was the overturning for the first time of ‘divine rule’ (King John, and somewhat later, King George III’s power over the American colonialists), the beginning of representative democracy, and as Lord Judge, the former Lord Chief Justice of the United Kingdom, recently quoted[2]: “Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri”, which very roughly translated into American means ‘No taxation without representation’. Now which lawyer, which American, hasn’t heard that phrase before?

Did you know that Americans abroad were the last to be franchised? And when? On 7 January 1977 President Ford signed (not sealed) the Overseas Citizens Voting Rights Act after we lobbied Tip O’Neil, then Speaker of the House when we got five minutes with him in 1974, and pleaded ‘no taxation without representation. Before 1977, Americans abroad still had to pay taxes, but had lost the right to vote by moving overseas.

And it was the foundation of human rights, under threat now at home and abroad, as we consider how to cope with the threats which face us in the 21st Century. And civil liberties, as protected in the American Constitution.

Magna Carta enshrined the Rule of Law. It limited the power of authoritarian rule. It paved the way for trial by jury, modified through the ages as the franchise was extended.

Are you aware of the World Justice Project? You should. I would think that you agree with me that it is the rule of law, which began in 1215, when under duress admittedly King John agreed to live in a shared freedom, not in a less than benevolent dictatorship in which he was the dictator.

The World Justice Project uses a working definition of the rule of law based on four universal principles, derived from internationally accepted standards, a system where four universal principals are upheld.

1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable and just; are applied evenly; and protect fundamental rights including the security of persons and property.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Would you agree? How would you rate this country on upholding these principles?

The World Justice Project Rule of Law Index measures countries on nine factors:

1. Constraints on Government Powers: 10th
2. Absence of Corruption: 15th
3. Open Government: 9th
4. Order and Security: 15th
5. Fundamental Rights: 23rd
6. Regulatory Enforcement: 10th
7. Civil Justice: 14th
8. Criminal Justice: 14th
9. Informal Justice

And within each of these factors, tests of countries are undertaken annually.

You will not be surprised that consistently, the Scandinavian countries are ranked higher than the UK.

But there are some surprises, e.g.,

Hong Kong is rated 9th on Absence of Corruption, Japan is 11th and Germany 12th while the UK is 15th. We should do better.

That on Fundamental Rights, including sub-factors of Right to Life and Security, Due Process, Right to Privacy, Freedom of Religion, Labour Rights, Freedom of Expression, Equal Treatment and Freedom of Association, the Czech Republic at 11th, Estonia 12th and Slovenia 13th all rated above Britain’s 15th place. We should do better.

This Index is less well known than it should be. I would challenge you to take it on board, and where Freedom and Security meet, the Freedom Association stands firm.

You can find out more about this at www.worldjusticeproject.org.

Magna Carta proclaimed certain religious liberties, “The English Church shall be free”.

Magna Carta was England’s greatest export.

Now affecting the lives of nearly two billion people in over 100 countries throughout the world.

For centuries it has influenced constitutional thinking worldwide including in many Commonwealth countries, even in France, Germany, and Japan, and throughout Asia, Latin America and Africa.

Over the past 800 years, denials of Magna Carta’s basic principles have led to a loss of liberties, of human rights and even genocide taking place yesterday, this morning, today and tomorrow.

It is an exceptional document on which all democratic society has been constructed, described by the former German Ambassador when he said to me that everybody in Germany knows about the Magna Carta, it is “The Foundation of Democracy”.

Thirty-eight years ago in all its splendour the House of Common’s Speaker and House of Lords Lord Speaker, MPs and Peers, Law Lords, Ambassadors and High Commissioners, the Archbishops of Canterbury and York, met with the senior members of the American Congress and Senate assembled in the 1,000 year old Palace of Westminster’s Westminster Hall to hand over the Lincoln 1215 Magna Carta to the Library of Congress in the Autumn of 2014, to be displayed in the Rotunda of the Congress of the United States. I was there.

This time the plan is to have the Supreme Court organised ‘mock trial’ with judges, jury and advocates, mainly from Commonwealth countries, judging barons and bishops in the dock on the charge of treason, telecast and broadcast on BBC World.

This will be on 31 July, the night before the Supreme Court Magna Carta Exhibition opens for August and September next year. The British Library, starting in November the British Library will have the biggest exhibition it’s ever held.

There will be exhibitions and demonstrations, pageants and concerts, sound and light shows, seminars and symposiums, open lectures and plays in the Magna Carta Towns in Cathedrals and castles, town halls and town squares throughout the land here, and in many exhibitions and events in Canada and the USA, France and Germany, Poland and Trinidad and throughout the Eastern Caribbean, in southern Asia, Africa, Australian and New Zealand, and everywhere that values the principles that the Barons wrenched from the King at Runnymede. They had to fight for it, and we are the beneficiaries of their fight.

You can follow the commemoration of the 800th by signing up to the MC Newsletter at our website and tell us if you’d like to get involved, at www.magnacarta800th.com. And I hope, some of you will be with us next year on the 800th anniversary at Runnymede, and some as well in Westminster Hall for the mock trial at the end of July, or at least watching it on BBC World and I hope PBS in the USA, ABC in Australia, and in Canada on CBC as well as well as in many countries’ TV stations, on the Internet, and elsewhere throughout the world.

Thank you.

 

January 25, 2014

The Freedom Association, Runnymede Speech 2013

Hon. President, Gill, Christopher, Speech at Runnymede to the Freedom Association, Runnymede plain, 15th June 2013.

“Ladies & Gentlemen, we are gathered here today as members of the Freedom Association to mark the 798th Anniversary of King John putting the royal seal to the Magna Carta.

You will hardly be surprised when I tell you that the text for what I have to say on this historic day is the single word, Freedom………..but before developing that theme I want to pay tribute to the two Prime Ministers who,  in my lifetime,  truly understood the meaning of that crucial word.

I refer of course, in the first instance, to Sir Winston Churchill who, against all the not inconsiderable odds stacked against him, united the then British Empire in the armed struggle against the Axis forces of terror and tyranny.

As a child I lived through the Second World War. Night after night we slept under the dining room table or in the next door neighbour’s air raid shelter. As the bombs rained down and the bullets flew my generation instinctively knew that freedom was well and truly on the line.

In the second instance, as many of you will have already guessed, I want to pay tribute to the late lamented Margaret Thatcher who unswervingly stood up for freedom. She instinctively knew that there is no ‘third way’ between freedom and tyranny and, as we all know, it was her declaration of opposition to EU imposed tyranny in her famous Bruges speech which provoked the forces of darkness within the Conservative Party to engineer her defenestration.

But before that appalling act of treachery and betrayal it was the Western world’s great good fortune that, in cahoots with Ronald Reagan, Margaret Thatcher stood up to Soviet Russia and effectively ended the Cold War. She understood, better than most, that the way to deal with bullies is to stand up to them, just as she had stood up to the bullies in the Trades Union movement and banished the iniquitous ‘closed shop’.

To quote the Iron Lady “A man’s right to work as he will, to spend what he earns, to own property, to have the State as servant and not as master; these are the British inheritance. They are the essence of a free economy. And on that freedom all our other freedoms depend”.

Those words of Margaret Thatcher’s encapsulate some of the most important fundamental human rights – the right to act, to speak or think freely, to be master of one’s own fate – the origins of which go back to the Magna Carta sealed by King John on this day in 1215.”

To download the full speech, click the following link: Addressing the gathering of Freedom Association members at Runnymede on the occasion of the 798th Anniversary of the signing of Magna Carta the Hon-2

To download Christopher Gill’s book, “the Pocket Book of Freedom”, click the following link: The Pocket Book of Freedom

November 7, 2013

Magna Carta Debate

The Rt Hon. Baroness Boothroyd, Betty, The House of Lords and the 800th anniversary of Magna Carta, 7th November 2013.

Baroness Boothroyd initiated a debate in the UK’s House of Lords to “ask the Chairman of Committees what plans the House of Lords has to celebrate the 800th anniversary of Magna Carta”.

Baroness Boothroyd’s opening speech is shown below. To read the full text of Hansard, click MC Magna Carta HoL Debate 7.11.13

Baroness Boothroyd (CB): My Lords, one of the team organising the 800th anniversary of Magna Carta said recently that it was a celebration of democracy, which it is. He then added in a private, off the cuff comment, that this probably ruled out the House of Lords being involved, a jibe I resent and deplore. It not only betrays a gross ignorance of the role of this House in Parliament and its place in the constitution, it is also historically bunkum.

The Barons who forced King John to sign Magna Carta in 1215 paved the way for many of the liberties we and millions of others enjoy throughout the world. Of course, those medieval Barons were not democrats, far from it. But they laid the foundation on which our freedoms are based—the rule of law, the limitation of executive power and the rights of the individual.

Look around you, my Lords. Their statues, as filthy and as dirty as they are, adorn our walls. Sixteen of the Barons and two Bishops who were at Runneymede look down on us. They changed the course of history, which is why I want this House and this Parliament to be in the forefront of the anniversary celebrations. Sadly, it will not be, according to the plans so far announced. I am told that my views on this are unhelpful but I make no apology.

Preparations for the anniversary have been underway for several years and one of the key decisions needs to be challenged. The highlight of the anniversary will be the display of all four surviving copies of the original charter in the British Library. Parliament will be a backcloth to the celebrations, not a focal point. True, we have two facsimile copies of Magna Carta in this House. One is in one of our Division Lobbies and has been there for a very long time; the other is in the Royal Gallery, put there recently, courtesy of the noble Lord, Lord Mitchell. But they are not the real thing and the British Library intends to restrict the display of the four surviving originals to allow experts to study them and members of the public who pay to see them, or with free tickets obtained by ballot. I understand that the originals will be reunited for just three days before two of them are returned to the custody of Lincoln and Salisbury Cathedrals. What visible role will this Parliament play in all that? I have yet to be enlightened. I look to the Front Bench to enlighten me on that.

This is rightly a joint Anglo-American celebration. I have to say the Americans have seized the opportunity to show what they owe to Magna Carta with greater enthusiasm than anything so far evident on this side of the Atlantic. The Law Library of Congress will display a later revision of the Great Charter sent from England. Another copy will go to the Houston Museum of Natural Science in Texas, where over a million people are expected to see it. Parliament will have nothing to match that. Yes, certainly there will be events in Parliament Square, a parliamentary education centre if the money can be found, and the annual Parliament Week with its own programme of events, which are all well and good.

But I submit we need to do more, a lot more, to raise public interest and alert the nation to the significance of what happened 800 years ago.

As things stand, my concerns and my fears are that we shall lose a once-in-a-century opportunity to proclaim Parliament’s seminal role in the advancement and protection of Magna Carta’s most basic principles. In many parts of the world, they are still revolutionary principles. Billions of people are denied their basic human rights. Let us rekindle their hope by showing them that change is possible and democracy works.

Let us not forget either that 2015 is the 750th anniversary of Simon de Montfort’s Parliament—another Baron who confronted an over-mighty executive. Let us remember also the monarchy’s role in all this.

The Queen is patron of the Magna Carta Trust, which oversees the celebrations. The monarch is sovereign because the Crown is constitutional. That seed was also sown in 1215 and the monarchy is stronger than ever before.

Previous efforts to involve Parliament more closely have got nowhere. Last December, the noble Lord, Lord Mitchell, asked what plans the Government had for the anniversary. He offered a brilliant idea. He suggested that the four original copies of the charter should be exhibited together for the first time, perhaps in Westminster Hall. The noble Lord, Lord McNally, replied for the Government at that time. “That’s a very good suggestion”, he said. He was sure the organising committee would welcome it. I regret to say they did not and I hope very much they will reconsider. Let there be no doubt about it: the original copies of the charter should be here in Westminster Hall. I will tell you something: if I were still wearing the robes of Speaker of the Commons, I would ask for a joint session of both Houses of Parliament in Westminster Hall to celebrate the anniversary, with at least one of the original charters as its centrepiece. The British Library could surely spare one of its two originals for just one day. We have held joint sessions in Westminster Hall for royal occasions and visiting leaders. What I propose would be no less memorable. I believe the whole world should see Magna Carta honoured where it truly belongs: in the heart of our democracy.

I am delighted to see my colleague, the noble Lord, Lord Elystan-Morgan, in his place this afternoon. When this question was first raised in this House, he said: “Magna Carta … remains one of the most noble documents of human history”.—[Official Report, 17/12/12; col. 1335.]

He was right. Let us rededicate ourselves to its principles in a manner that befits this Parliament and safeguards its most precious rights.

Click MC Magna Carta HoL Debate 7.11.13 to download a copy of the full debate or click here to go to the Hansard page.

October 11, 2013

Video: Keynote Speech by Stephen Breyer

Justice Breyer, Stephen, Keynote speech to the International Bar Association, The Rule of Law Symposium at the International Bar Association Annual Conference, 7th October 2013.

Click here to watch a video of the keynote speech by Stephen Breyer, Associate Justice of the US Supreme Court, addressing the Rule of Law Symposium at the IBA Annual Conference 2013, in anticipation of the 800th anniversary of Magna Carta.

 

September 27, 2013

The Relevance of Magna Carta in the 21st Century

Worcester, Sir Robert, The Relevance of Magna Carta in the 21st Century, The Reform Club, Apollo Dinner, 27th September 2013.

There are many myths which surround the Magna Carta. That it was only a fight between the barons and the King.  It certainly was, but not only that. That it was signed at Runnymede.  It wasn’t, it was sealed.  That it wasn’t the beginning of parliamentary democracy.  Well, perhaps not, technically.

It was the beginning of the spread of real democracy, not on the Athenian model. For Magna Carta is the overturning for the first time of ‘divine rule’ (King John, and somewhat later, King George III’s power over the American colonials), the beginning of representative democracy, and as the Lord Chief Justice of the United Kingdom recently quoted: “Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni  nostril, which roughly translated into English means ‘No taxation without representation’.

Now where have I heard that phrase before…?

It was an idea that’s time had come.  It was followed just eight years later, in the ‘Golden Bull’ in Hungary.  England’s greatest export, it is now embodied in the Rule of Law in over 100 countries.

And it was the foundation of human rights.

It is time then, to examine what happened then, and now, what’s happening now, the relevance of the Magna Carta in our lives, its applicability today.

To download the full speech, please click MC Apollo Dinner, 27 September 2013-1.

August 2, 2013

St Albans 2013 Magna Carta Lecture

Prof. Bogdanor, Vernon, St Albans Magna Carta Lecture, St Albans Cathedral, August 2013.

Thank you for inviting me to talk at this festival at St Albans, one of the five charter towns. The 800th anniversary of Magna Carta does not of course occur until 2015, but I believe that the discussions that led to it began at St Albans Abbey in August 2013. So this is a happy moment to lecture on that very significant document.

None of us should be in doubt that Magna Carta remains a living presence. Some years ago, in 2006, an opinion poll suggested that most people believe that Magna Carta day, 15th June, should be a national holiday. That was a timely rebuke to those of us who thought that Magna Carta had been largely forgotten; and that, if it was remembered at all, it was only through the immortal quip of the comedian, Tony Hancock, who asked, `Magna Carta – did she die in vain?’

More recently, I read an article in The Economist on 13 July on the theme, `Has the Arab spring failed?’, which said.

`When you say that it takes decades not years, to bring about democratic change, you are off by a factor of 10. It takes centuries. The imperfect democracy we enjoy in the West has its roots in the Middle Ages. The signing of the Magna Carta in 1215 by the English King John can be held as a good starting point’.

But this comment is really quite anachronistic. Magna Carta is in no sense a democratic document. We must be very careful not to read back the present into the past. People have often interpreted Magna Carta not in terms of what it said, but in terms of what they thought it said or what they hoped it said. But, although Magna Carta is by no stretch of the imagination a democratic document, it does, so it seems to me, contain one fundamental principle which resonates throughout British history, the principle that government must be subject to law.

Of the 63 clauses in Magna Carta, just 4 remain. The rest have been repealed, and most of them have been superseded. The two most important clauses of the original document are 39 and 40.

Clause 39 says `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 judgment of his equals or by the law of the land.’

Clause 40 says `To no one will we sell, to no one deny or delay right or justice’.

In addition, the Charter insists that the king cannot arbitrarily tax his subjects without their consent. The implication is that consent can only be legitimately given by a body properly summoned for the purpose – in other words a parliament – and a parliament did indeed come into existence in the 1250s. Of course, the principle of no taxation without representation played an important role in the revolt of the American colonists against British rule in the 18th century, and indeed the political philosopher, Edmund Burke, who supported the colonists, declared that the Americans were absolutely entitled to `sit down — to the feast of Magna Charta’.

It is the clause on taxation and the two clauses that I have quoted that express the fundamental principle which makes Magna Carta so important, that government must be subject to law. Under Magna Carta, the executive, that is the king, is put under constraint by the barons. He can no longer do what he likes.

This principle laid down in Magna Carta played an important role in the 17th century in the attack on the theory of the divine right of kings. For the parliamentarians argued that Magna Carta had laid down a principle so fundamental that no king could ever override it. It was in terms of this fundamental principle that Charles I was to be accused of treason. In 1649, the House of Commons declared that `Charles Stuart, the now King of England — had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government’. And, later in the 17th century, in 1689 when the Commons condemned James II, one of the charges against him was that of `having violated the fundamental laws’.

Of the various groups who used Magna Carta as a weapon against the king in the 17th century, the Levellers were the most radical; and it is to the Levellers that we owe the idea of fundamental law, indeed of a written constitution. In 1647, the Levellers drew up the first of three Agreements of the People, according to which Parliament was to be limited by fundamental law which was unalterable. Under the terms of this first Agreement, Parliament could not legislate against the freedom of religion, it could not exempt anyone from the due process of the law, it could not abridge the freedom to trade abroad, and it could not impose the death penalty except for murder. Above all, it could not abolish trial by jury. A third Agreement of the People, drawn up in 1653, went further and declared that `all laws made, or that shall be made contrary to any part of this Agreement, are thereby made null and void’. This third Agreement can perhaps justifiably be regarded as the first real constitution in modern European history.

After the Restoration in 1689, the idea of fundamental law receded. But it was to be resurrected across the Atlantic during the American revolution, and some of the ideas of the Levellers were to be embodied in the American constitution.

This principle, that government must be subject to the law, is, in my view, a more important principle than that of democracy. The danger with democracy is the assumption sometimes made that a majority that has won power in a free election has the right to govern as it wishes, to do as it likes. It is worth remembering that the Nazi Party in two indubitably free elections in 1932 secured a far higher vote than any other political party. Before Hitler came to power, in December 1931, he had said, `that if we come to power legally we could then break through legality. ——— the fundamental thesis of democracy runs: `All Power from the People’ .’ No wonder that, in January 1941, Hitler could say that `the National Socialist Revolution defeated democracy through democracy’. It is worth noting too that, in 1980, Iranians voted in a free election for a theocratic republic in which human rights have come to be non-existent.

Government under the law means much more than elections. It means also that there must be respect and freedom for opposition parties, free access to the press and other media, an independent judiciary with the power to check arbitrary government, civilian control of the armed forces, the removal of the military from politics, and, above all, respect for human rights. A well-functioning democracy cannot exist without respect for the rule of law.

Both Britain and the United States had governments subject to the law long before they became democracies. Indeed, Britain became a full democracy comparatively recently, in 1928, when women over 21 were given the vote on the same basis as men. But, long before Britain was a democracy, government had been regulated by the rule of law.

One of the signs of a constitutional democracy is that no one is above the law. In the United States, President Richard Nixon said in 1974, when accused of criminal offences, after the Watergate break-in, that if a president does something, it cannot be illegal. The Watergate prosecutors proved him wrong and he was forced to resign the presidency to avoid impeachment. In Britain, Lord Denning, as Master of the Rolls, reminded a minister in the 1970s – be you ever so high, the law is above you.

This principle, that no government is above the law, is embodied in most democracies in a written constitution. We of course do not have a constitution. We are one of just three democracies without one. Someone once said that the British constitution is not worth the paper it isn’t written on.

Why do we remain almost unique in not having a written constitution? There are, I believe, two reasons, the one historical, the other doctrinal.

The historical reason is that we never began as a society. Almost all countries have adopted constitutions to mark a break in their development such as a revolution or the end of colonial rule. Our system of government, however, is marked by evolution and adaptation, without sharp breaks except during the civil war of the 17th century. But, significantly, after the experiment of the republic, we referred to 1660 as a restoration, as if there had been no break at all. But, apart from the civil war, we have never really had a constitutional moment. France, by contrast, has had 16 constitutions since the revolution began 16 times. The story is told of someone who, in the 1950s, went to a shop in Paris to ask for a copy of the constitution, and was told, `I am afraid that we do not sell periodicals here.’ There used to be an advertisement in the Paris metro – Republics come and go – Soudee paint lasts.

Our constitution is what might be called a historic constitution. By that I mean not merely that our system of government is very old, but that it is a product of evolution – no one ever designed or planned it. It developed, as it were, spontaneously.

But there is also a reason of principle why we have never had a written constitution.

It is because, until recently at least, our only constitutional principle was that Parliament was sovereign, that it could do what it liked. If that was so, it was pointless to have a constitution. For the whole point of a constitution is to establish certain fundamental laws which lie beyond the reach of Parliament. In Britain, however, it seemed that there could be no such fundamental laws. In the 18th century, one constitutional theorist said that Parliament could do anything it liked except turn a man into a woman and a woman into a man. But, in fact, if Parliament said that a man was a woman, then, for the purposes of the law, a man would be a woman!

Given that Parliament was sovereign, the British constitution could be defined in 8 words – what the Queen in Parliament enacts is law. There seemed no need for anything more.
You might argue, however, that Magna Carta has little value if its basic principle is at the mercy of Parliament – or, in effect, of government, since of course most governments enjoy a majority in the House of Commons.

In fact, however, governments in Britain have been limited not by a constitution, but by non-legal rules called conventions. By convention, there are certain things that no government would ever do. In theory, Parliament could pass an enactment providing that all red-headed people were to be executed next Monday; in practice, it would never do so.

But the trouble with conventions is that their precise scope and nature are not always clear. Over a hundred years ago, one constitutional theorist declared that Britain was governed by a system of tacit understandings. But these understandings were not always understood. The same is true today.

However, the last forty years, and in particular the years since 1997 have seen a constitutional revolution in Britain. The revolution began with our entry into the European Community, as the European Union was then called, in 1973. It continued with the Human Rights Act of 1998 and the devolution legislation of the same year.

In my opinion, these changes have fundamentally altered our constitution. You may remember the story of Rip van Winkle who feel asleep for 20 years in 18th century America. When he went to sleep, he remembered a pub called `The George’. It had a picture of George III outside it. When he woke up, after 20 years, the pub was still there, still called `The George’, but the picture was of George Washington, not George III.

We tend not to notice constitutional change precisely because we do not have a written constitution. The 19th century constitutional thinker, Walter Bagehot said in his book The English Constitution, `An ancient and ever-altering constitution [such as the British] is like an old man who still wears with attached fondness clothes in the fashion of his youth; what you see of him is the same; what you do not see is wholly altered’.

Our entry into the European Community in 1973 marked a very fundamental change. For the European Community was not simply another international organisation like the United Nations or NATO. It was a legal order superior to that of the Westminster Parliament, with the right to pass laws which had direct effect in the United Kingdom, and which superseded our own law. The principle of the sovereignty of Parliament, however, declares that there can be no law-giving body superior to Parliament. In an important case in 1991, however, – the Factortame case – the courts refused to apply part of a statute – the Merchant Shipping Act – because it was contrary to European law.

Today, we can see how the European Union limits our sovereignty by considering the issue of immigration. There is currently much discussion about immigration from ex-Communist countries that have joined the European Union, such as Romania and Bulgaria. Some people would like to see this immigration restricted. But Parliament cannot restrict it, since the free movement of peoples is guaranteed by the Treaty of Rome, the founding document of the European Union. This is a clear example of the restriction of sovereignty. It is a striking illustration of the fact that Parliament can no longer pass any law that it likes.

The Human Rights Act of 1998 alters our understanding of rights. Previously rights were residual – you could do whatever the law did not prohibit you from doing. But the Human Rights Act sets out a list of positive principles, based on the European Convention of Human Rights, that determine our rights. This is a positive statement of what our rights are; and it is for the judges to interpret legislation in the light of this higher law, the principles enshrined in the European Convention of Human Rights.

But, again, on the traditional understanding, there can be no higher law in the British Constitution. There can be no law which Parliament cannot change, no fundamental or so-called constitutional law. Formally that remains true. Judges, if they believe that legislation contravenes human rights, can do no more than issue a declaration of incompatibility. They cannot declare that statute void, as, for example, the United States Supreme Court can do with laws that contravene the American constitution. Parliament can still, if it wishes, maintain a law which offends against human rights – although so far it has not done so. Even so, the Human Rights Act makes the European Convention in effect part of the fundamental law of the land. It is the first step on what may perhaps prove a long journey towards a written or codified constitution

Finally, devolution has established in the non-English parts of the United Kingdom – Scotland, Wales and Northern Ireland – the constitution of a near-federal state. Since 1999, Parliament is in effect no longer responsible for the domestic affairs of the non-English parts of the United Kingdom – matters such as health, education, housing and transport – these matters are of course the essence of politics in many ways. They are now the responsibility of the devolved bodies in Scotland, Wales and Northern Ireland. On these matters, Westminster is now, in effect, an English Parliament – although of course MPs representing constituencies outside England can still vote for legislation affecting England only – something which many people believe to be an anomaly and which gives rise to the famous West Lothian Question.

So Westminster has been transformed into a parliament for England, and a federal parliament for Scotland, Wales and Northern Ireland.

In consequence, the next general election, due in 2015, will not decide matters of housing, health, transport or education for Scotland, Wales or Northern Ireland – those matters will be decided by elections for the devolved bodies – but only for England.

The crucial consequence of these reforms in my opinion is that we are beginning to develop fundamental laws.

Our constitution is no longer historic, but is becoming something deliberately designed and planned.

We have been doing something almost unique in the democratic world. We have been converting an unwritten constitution into a written one. But we have been doing it in a typically British unplanned and pragmatic way by piecemeal means.

One reason for this is that there is no real political will to do more. Constitutional reform lies low on most people’s list of priorities. I remember that just before the 1997 general election, when one of the main policies of the Blair government was constitutional reform, MORI, the survey research organisation founded by Sir Robert Worcester, asked people for their priorities. In a list of 14, constitutional reform came 14th! The British people, perhaps wisely, are interested not in constitutional procedures but in political substance. It would, incidentally, be interesting to know whether priorities are different in the United States, with its long experience of a written constitution.

But, there is a second reason why our progress towards a constitution has been unplanned and pragmatic. It is that there is simply no consensus on what the final resting-place should be. There is no consensus, for example, on whether we should remain in the European Union, on the electoral system for Westminster, on the future of the House of Lords, and on Scotland’s place in the United Kingdom.

Nevertheless, the constitutional reforms already enacted have had very radical consequences. The most radical consequence is that they have limited the power of government. In the 1970s, a leading Conservative, Lord Hailsham, said that the system of government in Britain was an elective dictatorship. But the reforms have undermined it. They have limited government. Governments now have to ask about their legislation – is it compatible with our membership of the European Union, is it compatible with human rights – will the judges accept it, – will it be operative outside England. Britain is now much less of an elective dictatorship than it was. The scope of government is now much more limited.

Power has been dispersed – dispersed to the European Union, to the judges and to devolved bodies in Scotland, Wales and Northern Ireland. Someone once defined liberty as power cut into pieces. The reforms have, so it seems to me, cut power into pieces.

My central argument is that we are moving away from a constitution based on the sovereignty of Parliament to one based on the dispersal of power – indeed a separation of powers – both at the centre where there is a new separation of power between government and the judges – and territorially – within the United Kingdom, in the non-English parts of the United Kingdom – and between the United Kingdom and the European Union.

All this of course leads some to think that it is time we had a written constitution. And it is said that former Prime Minister, Gordon Brown, wanted Britain to adopt a written constitution on the 800th anniversary of Magna Carta in 2015. There is in principle perhaps a strong case for a constitution. But I believe that there are two reasons why the time is not yet ripe.

The first reason is that there is much uncertainty about where we are going, a sense of incompleteness. There is no real finality. When the National Assembly of Wales was being set up, the Welsh Secretary, Ron Davies declared that devolution in Wales was a process not an event. The same, I think, can be said of constitutional reform as a whole. It is an ongoing process not an event.

All the reforms so far enacted leave questions open. Our future in the European Union is obviously uncertain with the promise by the Prime Minister of a referendum by 2017. The future of the Human Rights Act is uncertain. The Conservative manifesto of 2010 proposed to repeal it, and there is much talk of a British Bill of Rights. The future of devolution also is uncertain. Will Scotland remain in the United Kingdom – if it does, it will almost certainly be given more powers by Westminster. Will there be devolution in England? All these questions remain unsettled.

We are at a transitional stage. We are half way between a state in which parliament is sovereign and one in which the constitution is sovereign.

But the reforms are incomplete in another sense also. A constitution must in some sense reflect society. Our constitution today does not -it reflects a top-down model of government inherited from the past in which the role of the people is essentially reactive and passive. The constitutional reforms that I have described have done little to alter this situation.

This can be seen if we ask what difference they have made to the ordinary person living in St Albans, who does not want devolution, and who, while she may welcome the Human Rights Act, hopes never to have to use it. People in St Albans are, after all, sensible. They want to keep out of the hands of lawyers, and use the courts only as a last resort.

The truth is that the reforms have redistributed power between professionals – between political professionals at Westminster, Edinburgh, Cardiff and Belfast, and between politicians and judges. One can put the point rather crudely, and say that the reforms show how the officer class has decided to divide up the spoils.

But the reforms have done little to increase popular satisfaction or engagement with politics, to increase popular engagement with politics. That was one of the aims of the reformers and they have failed to achieve it.

The evidence is all around us.

Of course, we continue to vote in elections – though fewer of us vote than in the 1950s – when turnout was well over 80%. In the last election in 2010, by contrast, it was just 65%; and amongst 18-24 years olds, it was just 44%. In 2001 turnout was just 58% – the lowest since universal suffrage.

Fewer of us now join political parties. Both Labour and the Conservatives now have fewer than 200,000 members. In contrast, sixty years ago, the Labour Party had one million individual members, and the Conservatives around one and a half million. One can put the point another way – 60 years ago 1 in 11 of us belonged to a political party; today just 1 in 88 of us do. The Royal Society for the Protection of Birds and the National Trust each have around one million members. That is more than all of the political parties put together.

Part of the reason for disenchantment is that people no longer trust elected representatives as much as they once did. People seek to exercise power between elections as well as during the election itself. Moreover, they no longer accept politicians as the sole source of power and authority. Many no longer believe the system enfranchises them. Gordon Brown put the point well in a Fabian pamphlet, written as long ago as 1992. `In the past’, he argued, `people interested in change have joined the Labour Party largely to elect agents of change. Today, they want to be agents of change themselves’.

Some people say that the lack of engagement in politics in Britain is only part of a wider loss of community engagement, a decline in social capital. But survey evidence has found that popular interest in politics in Britain is as strong today as it has ever been and that there is a powerful sense of civic obligation in modern Britain. A few years ago, 81% of British adults gave to the tsunami appeal, twice the rate in the United States and two to three times the rate of many European countries. Around 40% of us belong to a voluntary organisation. Amongst 18-24 year olds, the very generation that is least likely to vote, around 3 million volunteer every year. And, as I mentioned a moment ago, the Royal Society for the Protection of Birds and the National Trust each have around 1 million members.

Popular interest in politics remains high, but electors are no longer content to confine participation to the traditional channels.

The democratic spirit is healthy enough. It is the institutions that seem wanting. It is not so much that there is a generalised disengagement with politics, but `rather that a vital link that connected citizens to the state and the formal democratic process has been broken’. The question is whether constitutional reform be extended so as to channel this civic spirit and desire for community engagement?

Perhaps we need to do more to reform our democracy, to open up the system. Previous reforms have redistributed power amongst the political and judicial class. They dispersed power sideways but not downwards. Perhaps there is scope for another instalment of constitutional reform, designed to open up the political system, to enable ordinary people to play a greater role. The death of Margaret Thatcher should have reminded us that she opened up the economic system, enabling many more people to own their own houses or to own shares. There are indeed now more shareholders than there are trade unionists. John Major opened up the public services to much greater scrutiny and consumer control. Can we not also open up our political system?

The era of pure representative democracy, as it has been understood for much of the 20th century, is now coming to an end. During the era of pure representative democracy, the people, though enfranchised, exercised power only on relatively infrequent occasions at general elections. Between general elections, they trusted their elected representatives to act on their behalf. There was some degree of deference towards elected politicians and, in any case, in an era when educational standards were lower than they are now, few voters believed that they had the political competence to make decisions for themselves. In the late 1940s, for example, the level of political knowledge was pitiable. Just 49% could name a single British colony, while, in a sample survey in Greenwich during the 1950 general election, barely half could name the party of their local MP. Voting tended to be tribal and instinctive, based largely on an inherited viewpoint derived from parental attitudes and social position. That, however, was bound to be a transitional stage. It was bound to take time before universal adult suffrage came to be taken for granted, and its implications for popular enfranchisement fully understood. Universal suffrage, therefore, is still a relatively recent phenomenon.

The model of representative democracy – perhaps guided democracy would be a better term – that was acceptable during the first years of universal suffrage – is no longer adequate. The exercise of a modicum of power at relatively infrequent general elections is seen as insufficient. Voters wish to exert influence upon events between elections as well as at them. Deference has largely disappeared, and it is no longer accepted that political decisions should be made only by politicians. Elected politicians, therefore, are no longer accepted as the sole source of power and authority. Few now believe that the system of pure representative democracy is sufficient to enfranchise them, and this feeling of disengagement seems most pronounced amongst the young. It is one of the main reasons why turnout has fallen so precipitously amongst this age-group. In addition, many voters, better educated than those of their parents’ generation, find themselves empowered in many other areas of their lives, while the collective organisations which previously ruled their lives, and in particular, the trade unions, have lost much of their authority. Yet, in politics, the people are still expected to remain passive and deferential. The political system has not yet responded to the new individualism. Despite the wave of constitutional reforms since 1997, the political system itself has not been opened up. There is a striking contrast between the empowered consumer and the passive citizen. So, if there is to be a further phase of constitutional reform, it must address this problem. That means, in my opinion, much more direct democracy – more referendums, primary elections for the selection of parliamentary candidates, and the chance for ordinary citizens to play a greater role in decision-making.

There is, it seems to me, a serious tension between our inherited political institutions, which reflect a paternalistic view of the public, and modern popular attitudes. Resolving that tension seems to me one of the most important problems that we face.

And it seems to me that a further stage of constitutional reform would be very much in the spirit of Magna Carta which we are celebrating here tonight.

Thank you for inviting me to talk at this festival at St Albans, one of the five charter towns. The 800th anniversary of Magna Carta does not of course occur until 2015, but I believe that the discussions that led to it began at St Albans Abbey in August 2013. So this is a happy moment to lecture on that very significant document.

None of us should be in doubt that Magna Carta remains a living presence. Some years ago, in 2006, an opinion poll suggested that most people believe that Magna Carta day, 15th June, should be a national holiday. That was a timely rebuke to those of us who thought that Magna Carta had been largely forgotten; and that, if it was remembered at all, it was only through the immortal quip of the comedian, Tony Hancock, who asked, “Magna Carta – did she die in vain?”

June 19, 2013

In Honour of Magna Carta

Rt Hon Lord Judge (Master Judge of Middle Temple), Lord Chief Justice of England and Wales, In Honour of Magna Carta, Temple Church, London, 12th June 2013.

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 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

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

On 15 June 1215 two sides in a forgotten English Civil War met at Runnymede by the banks of the Thames to see if they could, at long last, negotiate a peace. A document was prepared, but it was never signed. It was simply sealed. Although it is dated 15 June, its terms were probably not concluded until 19 June. No one called it the Great Charter, or Magna Carta. It was just another Charter.

Click here to read the full speech.

April 17, 2013

Rochester’s pivotal role in the XII Century and why it matters today

Worcester, Sir Robert, Rochester’s pivotal role in the XII Century and why it matters today, Rochester Cathedral Business Guild Dinner, 17th April 2013.

Click on the following link to download the full speech: MC Rochester Cathedral speech 17.4.13 website

February 26, 2013

Magna Carta History and Politics

These days the process of reflecting on major events in the past turns to a large extent on the celebration of anniversaries.  In the last few years we have had the anniversaries of the abolition of slavery, the publication of Darwin’s, Origins of Species, of the King James Bible.   Next year, we will be hearing a lot about the outbreak of the First World War in 1914.  The anniversary with which I am concerned today is that of the making of Magna Carta eight hundred years ago in June 1215.  In 2010 an Anniversary Committee was established, under the chairmanship of Sir Robert Worcester, and we are already at work planning a series of lectures, exhibitions, broadcasts, pageants and other events to mark the occasion, these spread across the country and culminating, we hope, in a visit to Runnymede by HM the Queen, who has graciously agreed to be our Patron.

To read the full talk, click here.

February 8, 2013

Perspectives on Human Rights & Australian Foreign Policy

Nearly 25 years ago, I stood in a bookshop asking myself if I really wanted to read another book on the Holocaust.

I opened If This Is a Man at Primo Levi’s description of an Auschwitz hut in the middle of the night.

He describes the sound of sleeping prisoners moving their jaws as they dream of food.

Levi writes: “You not only see the food, you feel it in your hands, distinct and concrete… someone in the dream even holds it to your lips.”

I decided to buy it.

The most important book of the 20th Century: Primo Levi’s If This Is a Man.

Because it is the best of all the books in the literature of testimony.

Because it is a monument to all those who were killed in the last century by totalitarian dictatorships.

Because it tells us what humans are capable of.

Click here to read the full speech.

November 29, 2012

The Relevance of the Magna Carta to the 21st Century

Sir Robert Worcester, Chairman of the 800th Anniversary Commemoration Committee, gave a speech at the Robert J. Dole Institute of Politics at the University of Kansas in November 2012. Follow this link to see the Youtube video of the lecture.

August 17, 2012

Parliamentary Libraries Celebrate 800th Anniversary of the Magna Carta

A King hoping to avert civil war approved Magna Carta in a field in the countryside of Runnymede, England on June 15, 1215. Since that time it has become one of the most celebrated documents in history. While King John conceded to the demands of his barons and affixed his seal to Magna Carta,   less than three months later the Pope voided the document and war broke out.  In spite of its initial failure, Magna Carta was reissued several times after the death of King John and has become a cornerstone of the rule of law worldwide.

This great charter of rights and liberties stands at the historic heart of English and American Law. It is one of the earliest statements of limited government and a point of departure for centuries of thought on individual rights.  This paper describes how parliamentary libraries in the UK and USA, will celebrate this historic anniversary.

To read the full paper click here

June 15, 2012

Sovereignty, Democracy, Justice: elements of a good society?

The current discussion about reform of the House of Lords is beginning to generate – if a bit slowly – some wider discussion about the character of our constitution overall and, more broadly still, about the nature of democracy itself. If we want a reformed second chamber, we need to be clear about why we want a second chamber at all; and if we do, should it have exactly the same kind of accountability as the first chamber, the primary lawmaking body? Indeed, what is political accountability?

To read the full speech, please follow the link below:

MC 2012 RHUL Magna Carta Lecture, Archbishop of Canterbury

June 8, 2012

Still a Role for the Barons?

At the time of Magna Carta, the title of Baron was somewhat more encompassing than it is today. The title encompassed all those who held land directly from the king. In the twelfth century, the more senior barons would receive a personal writ of summons to the King’s council, and this body constituted the precursor of the House of Lords. The junior or lesser barons, who held manors, would come to receive a single summons, issued to them as a group in each county. These lesser barons evolved into knights of the shires and their summoning to court was to form the basis of what was later to be the House of Commons.

The title of baron is today one of the five ranks of peerage. I propose to address it, though, in its original usage, as a term encompassing all members of the peerage. I also propose to address it from the perspective of those peers collected in a body that had a role in relation to determining the law of the land. When peers were summoned to the king’s court, it was not in order to make the law, but rather to advise the king in his determination of the law.

To read this in full, please download the PDF below:

Still a Role for the Barons?

April 14, 2012

The Relevance of Magna Carta: under threat as never before after nearly 800 years of evolution?

Good evening ladies and gentlemen.

It is a great pleasure to visit Washington where I lived for several years some fifty years ago to speak to the National Society Magna Charta Dames and Barons’ Annual Dinner.

I have a confession to make. I am not eligible to become a member of your fine organisation.
Chances are I cannot make a solid claim to have descended from one or more of the 25 Barons of Runnymede. The odds are stacked against me. Only one Baron, just one of the 25, was of Anglo-Saxon stock. Only 17 had children. If he didn’t, I had no chance at all!

By the 13th Century there had been considerable reduction in the distance between the Normans who had conquered England in 1066 and had separated it into the French/Norman aristocracy and the Anglo-Saxon peasants. The Anglo-Saxon nobles were recovering from the time of William and his son Rufus, who had confiscated the property of the English ruling class, divided the spoils of war, and subjugated its people.
Over the 150 years since, the very fact that the likes of Guilbert and Richard de Clare, William de Lanvellei, Saher de Quincy, William de Mowbray and John de Lacy were present at Runnymede is a clear signal that they were descended through several generations of the landed gentry, while the likes of my ancestors had lost their power, their lands and castles, their wealth and their status in society.

This means that at least 16 of the 17 Barons were of Norman/French descent.

To read this in full, please download the PDF below:
The Relevance of Magna Carta

October 17, 2011

Magna Carta Dinner

796 years ago tomorrow a reluctant, but resigned, and most definitely scheming King John was brought to Runnymede to put his seal to the Great Charter of Liberty – Magna Carta. John might have acceded to the Barons’ demands; he plainly had no intention of sticking to the bargain. Once at a safe distance from Runnymede he was urging Pope Innocent III to declare it void. The Pope agreed to John’s request, and on 24 August 1215, a mere ten weeks after its sealing, the Magna Carta was declared null and void by a Papal Bull.

And there its place in history may well have stopped. But, fifteen months later, after first facing a Baronial war, and then losing the royal treasury in the Wash, John fell victim to a bad dose of dysentery. And on 18 October 1216 he died, to be succeeded by his son, the more devout, less intelligent, longer lasting, but equally ineffective Henry III. The redoubtable Earl Marshal, the new young King’s regent, rescued Magna Carta from its threatened obscurity, revising and reissuing it twice. When he came of age, Henry III also reissued it, as did his son, Edward I, when he became King in 1297. And it is Edward I’s version which remains on the statute books to this day.

This evening, we are here to remember the birth of the Magna Carta, in the Inner Temple, one of the principal historic homes of the common law, and in the City of London, that even longer established entity, and we have celebrated the event with a beautiful and moving evensong. So it seems appropriate to say a few words about the religious implications, the legal implications, and the City implications of the Great Charter. Now, even though the Magna Carta remains part of our law, not all of it is in force, thanks to our Victorian ancestors, who, in a fit of unromantic practicality, repealed the vast majority of its provisions in the painfully prosaic Statute Law Revision Act of 1863. There are three provisions which, even after a couple of later repeals, are left untouched: chapters 1, 9 and 29. Chapter 1 well encapsulates the Charter’s ecclesiastical significance. It states that
“…. the English church shall be free, and shall have its rights undiminished and its liberties unimpaired: and we wish it thus observed, which is evident from the fact that of our own free and spontaneous will, before the discord between us and our barons began, we conceded and confirmed, by our charter, freedom of elections, which is reputed of the greatest necessity and importance to the English church.”

Now there is some debate as to the extent to which the Charter had been composed by Stephen Langton, the Archbishop of Canterbury. Recent research by David Carpenter confirms that, while his views were undoubtedly very influential on the drafting of the Great Charter, he may not have been involved in drafting most of its clauses. However, there can be little doubt but that he was the moving force behind chapter 1, which he probably was largely responsible for drafting.

No doubt Stephen Langton would have been very pleased to have seen that chapter included. However, it has been suggested that he would have felt profound and devout horror and disbelief, if, as a good Roman Catholic, who had enlisted the Pope’s support against John, he had been told that, little more than 300 years later, the English Church would no longer be part of the Roman Catholic confession. But I wonder. As David Carpenter says, chapter 1 records a “desire to set the church free”. And Langton was keen to reduce the powers of the Pope over the English church, securing the removal from England of the papal legate, Pandulph, in 1221 five years after John’s death, and securing other rights for the English church from Innocent III’s successor, Honorius III. So maybe in chapter 1 of the Magna Carta, we can detect the first little breeze which in 300 years grew into Henry VIII’s storm out of which developed the independent Church of England.

Apart from having had his way in a number of respects over two Kings and two Popes, Langton spent 25 years teaching at the University of Paris – a great European – and wrote many books. He is also credited with having divided the books of the Bible up into their present chapters and to have composed the famous medieval sequence, Veni, Sanctus Spiritus. So Langton was a pretty formidable character – I see him as something of a 12th century Sir Robert Worcester, the deputy chair and effective chief executive of the Magna Carta Trust.

But, for present purposes, as I have said, even if Langton did not actually write much of the Magna Carta, he was its moving spirit. He had railed against “the avarice…of modern kings, who collect treasure not in order that they may sustain necessity but to satiate their cupidity”.
And, as we have all very recently been reminded, Archbishops of Canterbury have a habit of getting involved in such issues on behalf of what they see as the unfairly oppressed people. In 1215, Langton may have agreed with the sentiment expressed by his successor nearly 800 years later in this week’s New Statesman that “the tectonic plates of British … politics are shifting”, although I doubt that he would have known much about tectonic plates or the New Statesman, both of which came first only came to anyone’s attention in the 20th century.

Whatever may have been his views about the poor, there was no doubt about Langton’s commitment to the rule of law. As his biographer, J W Baldwin, said in his work on Langton, ‘the absence of the judicial process became his principle justification for political resistance.” Which brings us to the second and most famous of the three surviving chapters of the Charter, chapter 29:
“No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.”

Stephen Langton was one of the three great men involved with the sealing of the Magna Carta. The other two were Earl Marshal and Hubert de Burgh. On the death of John, Henry III was only nine years old, and they were appointed joint regents. The country was in turmoil because the barons and John had been at war after the revocation of the Magna Carta, and the French army had invaded England. Marshall (who is appropriately for our celebration today buried in Temple Church) saved the day by reissuing the Magna Carta, thereby regaining significant popularity for the monarchy, causing the English army to re-form and drive the French invaders out. He was a great warrior and commanded an army which defeated the French at Lincoln – the famous “Faire of Lincoln” – described as one of three crucial English battles in the past millennium – the other two being Hastings and the Battle of Britain.

Marshall died shortly after that, leaving de Burgh as the sole regent. He was described as the Chief Justiciar, which meant that he was like the Prime Minister and Lord Chief Justice rolled into one. He also was a pretty successful general defeating a French army at Dover. Like Marshall, he reissued the Magna Carta, or got Henry to do so, and thereby achieved popular support for the Government. So, even a few years after it first seeing the light of day, Magna Carta had become a popular symbol of freedom.
And I have no doubt whatever that it was chapter 29 which above all other provisions made the Great Charter so popular.

We perhaps can properly understand its global significance if we turn to the 1354 version, an even later revision. In 1354 Edward III, John’s great great grandson, got in on the act and reaffirmed Magna Carta. His version had chapter 29 in this terms,
“… no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.”
Due process of law is of course shorthand for the ‘lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.’ As Chief Justice Coke, a former Treasurer of this Inn and the great early 17th century common lawyer, put it, was a declaratory statement of the Common law3.

Due process, was one of very few common law principles which was elevated into a constitutional right in the Constitution of the United States, through the 5th and 14th amendments to the Constitution. As with many things James Madison, forefather of the US Constitution and the original draftsman of the Bill of Rights, was responsible for transforming a principle articulated in a document sealed in a field in Surrey some 550 years earlier into a fundamental aspect of American political and legal life. And what is true of America is as true of the countries of the Commonwealth, and all liberal democracies, as is so well recorded in the Evensong programme this evening.

It is not just something of historical significance. As Chief Justice Coke, a former Treasurer of this Inn put it, Magna Carta established that the ‘Common lawes of the the old law of England.”
Realme should by no meanes be delayed for the law is the surest sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all4’. It is therefore a powerful symbol that no power in the State is, or should be, above the law.

And talking of this Inn, the third of the three surviving chapters guarantees all the ancient liberties and customs of the City of London, where we are this evening. Despite the dramatic reduction in the international power of this country over the past century, London still remains the, or at least one of the two, premier financial centres of the world. The resulting international prestige and the economic benefit which this country enjoys is self-evident, and can therefore fairly be traced back to chapter 9 of the Magna Carta.

Well, my Lords, Ladies and gentlemen, the Magna Carta, even reduced to three provisions, has it all: God Mammon and the rule of law. What more could you want?

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