October 13, 2011
Constitutional Relevance of Magna Carta in the 21st Century.
Speech by the Lord Chancellor and Secretary of State for Justice the Rt Hon Kenneth Clarke Q.C., M.P.
Thank you Lord Neuberger
I am delighted to be here today at the launch of a programme of celebrations culminating in the 800th year of the Magna Carta in 2015. I hope they will reignite interest and enthusiasm for one of the greatest events in British history and one of the great developments in the universal history of law and ideas, reflected in the fact that the monument on which I stand now was the gift of the American Bar Association for the 750th anniversary celebration.
I am grateful to the members of the Magna Carta Trust, to Runnymede Council, and to everyone involved in arranging this event today.
Why, apart from historical and dramatic interest, is it so important that we continue to remember what could be represented as an 800 year-old quarrel between an autocratic king who believed that he had authority from God to rule exactly as he liked, and a set of his barons who represented no-one but themselves and their own local and class interests? Why is it that we are gathered here today to remember the peace treaty that arose from that quarrel, so soon to be repudiated by the King and the Pope, and to celebrate its importance?
After all, only two chapters of Magna Carta now remain on the statute book.
When we read those two chapters, we have our answer:
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 judgment 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.
Of course, the reason why we should remember Magna Carta and celebrate it is that it began the process that would define the limits of what the state can and cannot do, and it began to chart the boundaries of the relationship between the state and the individual.
That’s a process that is still under way, and is a perennial challenge for governments, most especially for democratic governments.
All states, even the most democratic, have a natural tendency to accumulate more power than they need, and to impose more restrictions than are strictly and sensibly necessary. But the answer to every problem is not a new law; and the answer to every risk is not a new restriction.
If laws become too numerous, or intrude too deeply and needlessly into our private lives, then it may be necessary to review and even unmake laws previously thought useful.
One of the key themes in the programme for Government which we set out after the general election was the need to roll back the power of the state. We said in our Coalition Programme for Government:
We believe that the State has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.
We are putting that promise into effect. Since the General Election we have taken steps to end the proliferation of unnecessary new offences, and have introduced a bill to scrap ID cards. In addition we have announced a review of Counter Terrorism powers, published guidelines for our security forces on the interrogation of detainees held by other countries, and commissioned an inquiry into whether the UK has been implicated in the improper treatment of detainees.
For me personally, in my role as Lord Chancellor, Magna Carta has particular resonance. In a sense, the Department for which I have responsibility is the living embodiment of Magna Carta. The legal system puts the principles of justice and the rule of law into practical effect, and it is my job to make sure that the system works efficiently and effectively at all times. On 14 May this year, I took my oath as Lord Chancellor at the Royal Courts of Justice, and then before Her Majesty the Queen. The words of that oath are:
“I …do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible..”
The words of that oath resonate with those of Chapter 40 of Magna Carta that I quoted earlier:
To no one will we sell, to no one deny or delay right or justice.
How best to do that is a challenge that we still wrestle with today, and every day:
How do we balance the needs of people who are less well off to access the justice system and get fair treatment in the courts against what the state can practically afford – especially in times when money is scarce and we need to reduce expenditure?
How do we ensure that justice is delivered speedily and accessibly – so that trials do not go on too long, and the system is not clogged up by bureaucratic processes that add nothing to the delivery of justice, and may actually impede it?
How far should the emergencies of history, the needs of national security and public safety, impact on the process of justice?
Magna Carta was not an end in itself, but a beginning, and those who drafted it, and took the considerable risk of placing it before King John here at Runnymede, acknowledged that.
As I have outlined, even today, its promises, which no fair-minded person would disagree with, still present a challenge to those of us entrusted with the duty and the privilege of administering the justice system.
The words from Magna Carta which I quoted earlier are emblazoned on the glass doors leading into the library of the new Supreme Court. Anyone can walk in and see them. They remind us that, where justice is concerned, the principles of Magna Carta are a reference to which we should always return to ensure that we are proceeding in the right direction.