March 1, 2016
Magna Carta Benches mark St Albans link
Councillor Annie Brewster has presented St Albans with handmade wooden benches to commemorate the 800th anniversary of the City’s association with Magna Carta.
The curved, solid oak benches were commissioned by Cllr Brewster who served as the Mayor of St Albans City and District in 2013/14.
She handed over the gift at a presentation ceremony at the War Memorial in St Peter’s Street where the benches have been sited.
Magna Carta is regarded as one of the most important documents in history as it established the Rule of Law with its human rights and obligations.
St Albans was the scene of the first meeting, on August 4 1213, held to discuss the content of the peace agreement between the Barons, the Clergy and King John.
The benches were made by Karl Barowsky of Solid Oak Hardwood Furniture, Hartlepool, which supplies benches to many Royal Parks.
Among those who attended the presentation were James Blake, St Albans City and District Council Chief Executive, The Very Reverend Dr Jeffery John, Dean of St Albans, Howard Guard, Deputy Lieutenant of Hertfordshire, Cllr Brewster, Jonathan Trower, High Sheriff of Hertfordshire, Judge Andrew Bright QC, Mr Barowsky and Lord McNally of the Magna Carta Trust.
Cllr Brewster said: “The historic meeting in St Albans Abbey led the way to the 1215 sealing of Magna Carta two years later in Runnymede.
“Similarly, in my 2013 Mayoral year, St Albans again led the way holding the inaugural events at the start of two years of national and international celebrations to commemorate the 800th anniversary of this world changing document.
“It has been a long tradition for the Mayor to give a gift to the City and, in days gone by, it was often a piece of silver.
“I received numerous requests for more benches in the City Centre and, as the District Council has just completed a project to create a circular paved garden area in front of the recently restored War Memorial, it has been the perfect opportunity to fuse heritage and function.”
The benches have six distinctive cut-outs of the St Albans saltire shield and were unveiled on Friday 26 February.
Mr Barowsky said: “I was delighted to be asked to design some benches worthy of such an important City. What we have created is a one off design. You will not find benches like this anywhere else in the Country.”
Councillor Annie Brewster, Portfolio Holder for Sport, Leisure and Heritage, St Albans City and District Council. Email: [email protected]
Tel: 01438 832255
Contact for the media:
John McJannet, Principal Communications Officer, St Albans City and District Council
Tel: 01727 296130
E-mail: [email protected]
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, 2011
The Magna Carta: Ideas for All Seasons
Rex no potest peccare (The King can do no wrong)
How many of you have read Unbroken, the bestseller by Laura Hillenbrand about Olympic runner Louis Zamperini ‘s experiences in World War II? Perhaps you will remember the part when Louie and his friends are in a particularly brutal Japanese prisoner of war camp where the Geneva Conventions are ignored and the rule of law is only a memory. In effort to distract themselves from mind numbing cold and starvation, the prisoners take to discussing the Magna Carta and its effect on medieval history. How amazing that in the midst of such deprivation, men on the edge of death focused on the Magna Carta. What a poignant example of the power and durability of the ideas in the Magna Carta. Powerful ideas – those that resonate within the human spirit — endure despite the historical accidents of their creation. The origin of this magnificent heritage was not promising. On the one side was an incompetent reckless King and on the other, a small group of landed hereditary nobility who were tired of the King’s endless demands.
We venerate the idea of the Magna Carta — that freedom is secured under the rule of law and that no person is above the law — even though the Magna Carta or The Great Charter as it later came to be called, was literally nullified within weeks of its sealing. The creation of the Magna Carta was a revolutionary response by a ruling class of barons who were not much different from the despotic monarch they despised. The Magna Carta gave life to the concept that individuals had rights against the previously unlimited power of the state. On June 15, 1215, on a beautiful meadow in Runnymede, halfway between London and the still royal palace at Windsor, 25 of England’s most powerful barons presented a document to King John essentially requiring the King to follow certain rules in dealing with English nobility and, especially, with their property. As was the custom with royal edicts, the King “sealed” the document, signifying approval.
Within days, seven copies of the document sealed by King John were issued from Runnymede and circulated throughout the kingdom; within weeks, six more were issued from Oxford. Even as these Magna Carta copies were being circulated, King John dispatched his envoys to Rome to complain to Pope Innocent III that he had been compelled by “force and fear” to seal the document. By mid-September, 1215, King John’s envoys had returned with papal edicts declaring the Magna Carta contract to be null and void. The Magna Carta had been in effect less than 90 days. Although reissued three times during the reign of John’s son, Henry III, and confirmed by the Crown more than 30 times thereafter, the provisions of the 63 specific “chapters” of the 1215 Magna Carta have largely been repealed and, in any event, never again existed in precisely the form presented to King John at Runnymede in June, 1215.
Remarkably, even though the Magna Carta’s specific provisions were abandoned or repealed, this was no 90 day flameout. Today, somewhere between a quarter and a third of all mankind is governed according to the principles it enshrined. We trace our written constitution, our right to equality and due process under law, our right to a jury trial and our habeas corpus rights to the document presented to King John on June 15, 1215.
The Magna Carta really represents two separate meanings, one literal and one symbolic. The literal meaning arises from the circumstances of 13th Century England and the dispute between and among a tyrannical and foolish monarch, a powerful Church based in Rome and a largely independent group of hereditary noblemen who were increasingly impatient with the personal cost to them of the King’s bad decisions. The symbolic meaning developed over time and is reflective of an ever changing political landscape. The literal meaning came to reference the rights enforced against a monarch by the English nobility; it was the resolution of a power struggle. The symbolic meaning became, and is, increasingly associated with a concept we call the “rule of law”, defined as an impartial justice system which is predictable and fair and which treats all people equally. It might be useful to take a few minutes to review the historical context in which the Magna Carta arose since it does help us to understand the symbol which the Magna Carta became.
There is nothing more difficult to take in hand, more perilous to conduct or more uncertain in its success, than to take the lead in the introduction of a new order of
Historians now think that there was probably very little pomp and ceremony attendant to the proceedings at Runnymede. King John clearly did not want to be a participant but had little choice. The 25 Barons were angry mostly about a seeming never ending increase in royal taxes and required payments but also had little choice. Unlike other times of feudal rebellions in English history, there was no readily identifiable royal replacement for the reigning king. King John believed, probably correctly, that he would be killed if he did not agree to the Barons’ terms.
Much of the language of the 1215 Magna Carta had been smoothed by Stephen Langton, the Archbishop of Canterbury whose appointment by Pope Innocent III King John had initially opposed. The document which emerged from this turmoil was the product of three competing judicial traditions: royal, ecclesiastical and baronial.
The royal justice system involved all matters that affected the King’s “peace,” whether directly or indirectly. Needless to say, these courts broadly interpreted matters affecting the King’s peace and were often seen as arbitrary and unfair. The Catholic Church, headquartered in Rome, ran the ecclesiastic courts which maintained jurisdiction not only over matters involving the Church’s clergy and religious offenses but most moral, marital and testamentary matters. Barons were given their titles and their large tracts of real property by the Crown; in turn, a Baron, as Lord of the Manor, was given authority to hear disputes involving his tenants who had agreed to work the land in exchange for shelter and security.
King John, whose reputation as wretched monarch has not changed much in the last 800 years, managed to alienate both the ecclesiastical and baronial jurisdictions early in his reign as King. During the first ten years of his monarchy, King John was constantly at odds with the Church since he regarded the Pope to be subordinate to the Crown, a view not shared by the Pope. The Holy Roman Empire, as the Church was frequently known, regarded itself to be a separate and independent sovereign that had shared power with the Crown since its agreement with English King Henry I about one hundred years earlier. The agreement essentially provided that while the nomination of the archbishops serving in England would remain with the Crown, the power to confirm the bishops through the granting of their religious symbols and authority remained with the Church.
This compromise worked well until King John’s choice for Archbishop of Canterbury was rejected by Pope Innocent III who substituted his own choice, Stephen Langton, a man of “superior moral and intellectual greatness. ” King John’s response to Archbishop Langton’s appointment was to confiscate all of the Church’s property in England. This, of course, did not sit well with the Pope who excommunicated King John, suspended religious sacraments in England and declared the English empire a “forfeit from God.” King John was neither smart enough nor strong enough to withstand this kind of pressure from Rome and ultimately capitulated, giving England to the papacy and receiving it back as a “fief” which meant that the Crown was now subordinate to Rome and required to pay homage to the pope. These concessions seemed to have assuaged Pope Innocent III who became a “cautious” ally of the King.
Law and justice are not the same. Gloria Steinem
The Barons’ dissatisfaction with King John was based on systemic and increasingly abusive requirements of the royal justice system. King Henry II had created a centralized royal justice system which the King’s officials administered in a uniform manner to all English people in common and thus the phrase “common law.” Although all litigants appearing in the king’s courts theoretically would be treated the same, almost unlimited discretion was vested in the power of the Crown. It was this potential for arbitrary power that was exploited by King John and lead eventually to the Magna Carta.
King John evidenced great skills as an abuser of judicial prerogatives. He regularly sold legal rights and privileges to the highest bidder and used the judicial system to reward favorites and punish enemies. Before a matter could be heard in a royal court, the parties were required to pay “monarch fees” which were neither uniform nor fair. If the Crown was in need of revenue — which was frequently the case during King John’s reign – litigation fees were increased to cover the royal need without reference to the dispute involved. There were fees for postponements and fees for nearly every aspect of the proceedings and these fees were separate and distinct from fines imposed on losing parties or to purchase freedom in case of incarceration.
Litigants who could not afford to pay the legal fees set by the Crown were forced to borrow from the King in order to pursue a case. Not surprisingly, the terms of these loan agreements were harsh, usually requiring the debtor/litigant to pledge his estate, personal property and, on occasion, family members. Some of the provisions of the 1215 Magna Carta seem peculiar until one understands that on more than one occasion, friends and family members of a debtor were literally held hostage by King John until the loan was repaid in full.
Of course, the King could also simply “forgive” a loan because the debtor was a friend, was a necessary political ally or had provided an “invaluable” service. During King John’s reign, the “invaluable” service usually involved military duty. In the 13th century, all barons were required to serve in the King’s army as well as providing a specific number of knights for military service. As was true with most things, a money fine could be paid to the King in lieu of service and a tax, called “scutage”, could be paid in lieu of knights’ service. Since these were obligations owed to the King, the King could, and did, increase these fines and taxes at whim. King John did so frequently to finance his many military campaigns and to pay the mercenaries he hired to fight on his behalf.
King John was no better a soldier than he was statesman or monarch. With each military defeat, the economic demands on the barons caused by King John’s failures seemed more ludicrous and less justified. By 1215, many barons had renounced loyalty to King John and were actively plotting his overthrow. Of course, this was not unique to1215; almost every English King after William the Conqueror had faced rebellious nobility. This time was different, however, in that there was no “obvious replacement” for King John who had, according to some historians, murdered several potential substitutes. Consequently, the barons decided to focus on King John’s “oppressive government”, particularly the abuses of the legal system which were so costly to them. King John offered to submit the barons’ complaints to a committee of arbitration, chaired by his new best friend, Pope Innocent III. But the Barons were having none of that and, on June 10, 1215, they entered London in force through the open gates of the city. This normally would have been the signal for violent rebellion and King John, then safely ensconced at Windsor Castle, knew it.
It was out of these circumstances that the “Articles of the Barons,” later called the Magna Carta, was sealed by King John in the Runnymede meadow on June 15, 1215. In exchange for the King agreeing to their demands, the barons renewed their oaths of fealty to King John on June 19, 1215. Seen in this context, the Magna Carta is less a statement of lofty legal principles than a pragmatic attempt by the English barons to limit the monarch’s otherwise unlimited powers while protecting their privileges. Almost every one of the Magna Carta “chapters” addresses an issue arising directly from the complaints described above.
The grievances that King John promised to redress in the Magna Carta reflect both the complaints motivating the barons and, almost coincidentally, provide its subsequent symbolic importance. The 1215 Magna Carta promised that justice would not be “sold denied or delayed,” and ensured that certain rights and procedures would be “granted freely.” You now understand the importance of its guarantee of the safe return of hostages, lands, castles and family members who had been, or were being, held as “security” for military service or loan agreements. Its other provisions similarly addressed the various abuses employed during King John’s reign.
As I said earlier, however, the Magna Carta was swiftly annulled by Pope Innocent III, finding it a “shameful and demeaning agreement, forced upon the King by violence and fear” and releasing King John from his oath to obey it. That action plunged England into a civil war known at the First Barons’ War as the barons reverted to a more traditional type of rebellion, replacing a disliked monarch with one whom they liked better. In that instance, and as perhaps the best evidence of the barons’ desperation, the crown of England was offered to Prince Louis of France. As a means of preventing war or as a method of dispute resolution, the 1215 Magna Carta was a failure and was only legally valid for, at most, three months.
However, as a symbol of a written contract between the governed and the government, the Magna Carta endured to become the basis of our own written constitution. What began as essentially a peace treaty between the barons and the king evolved into the basis for constitutional government in the United States and elsewhere. Ironically, it was the death of King John in 1216 which assured that the Magna Carta would survive. At the conclusion of the civil war in 1217, the Magna Carta was reissued on behalf of Henry III, John’s young son. It is that version of the Magna Carta which is with us here today and which became part of English constitutional law, confirmed by later kings and interpreted by Parliament. The differences between and among the many versions of the Magna Carta have occupied scholars for centuries but that is a discussion for another time. What is clear, however, is that the ideas which found their first expression in 1215 in the document forced upon King John have come to us in an almost unbroken path to form the basis of much of our constitutional tradition.
No shall any person be. . .deprived of life, liberty, or property without due process of law. United States Constitution
Everything from the phrase “due process of law” to the right of trial by jury, to the concept of habeas corpus, to the American Revolutionary slogan of “no taxation without representation” to the Equal Protection Clause which forms the basis for both the civil rights and equal rights campaigns can be found either explicitly or by inference in the Magna Carta as even a brief examination of the Magna Carta will show.
The phrase “law of the land” appears throughout the Magna Carta without ever being defined. Nevertheless, it is this phrase which forms the basis for much of the document’s symbolic meaning and modern day courts have found relevant constitutional meaning in the context in which it was used.
In the American colonies, the Magna Carta’s “law of the land” phrase became equated with “due process of law,” a legal principle that has been the cornerstone of procedural fairness in American civil and criminal trials since the late 1700’s. The “due process clause” of the Fifth Amendment to the United States Constitution by itself and through its incorporation into the 14th Amendment is the foundation of both procedural fairness in American law and courts and as the basis for fundamental substantive rights, like the right to privacy. Similarly, the Magna Carta linked this “law of the land” notion with the right to a trial by jury, providing that “no free man” would be “seized, imprisoned,. . .outlawed or exiled or injured in any way. . . except by lawful judgment of his peers, or by the law of the land, [emphasis added]. In 1215, “lawful judgment of his peers” was accomplished through a proceeding in which 12 knights or landowners familiar with the subject at issue took an oath and swore to testify truthfully about what they knew based on their own observations and other first hand sources. This process, which gave rise to many of our otherwise inexplicable evidentiary rules, was a form of peaceful fact finding far preferable to the trial by battle which characterized dispute resolution before that time. This process of adjudicating disputes by a jury of one’s “peers” became embodied in the 7th Amendment to the United States Constitution as the modern day right to trial by jury by a “truly representative” cross section of the community.
The same section of the Magna Carta also contains the seeds of modern habeas corpus, a legal phrase frequently used and perhaps less often understood. Habeas corpus, which literally means “to bring the body,” is a proceeding to determine whether a person who is jailed, imprisoned or otherwise detained by the government is being lawfully held. If it is decided that the person was detained through “due process of law,” then continued detention is permissible either through trial (if it hasn’t occurred) or post conviction. The Magna Carta similarly permitted continued incarceration if the person’s initial detention was by “the law of the land.”
The United States Supreme Court has also identified the Magna Carta as an early source of the “proportionality” analysis associated with the 8th Amendment to the United States Constitution. The Magna Carta prohibited the king from imposing a fine “unless according the measure of the offense.” It further provided that “for a great offense [the defendant] shall be [punished] according to the greatness of the offense.” We now understand that this language was intended to prevent King John from raising and lowering the various fines in the royal courts at whim. The United States Supreme Court, however, found in this concept the prohibition against both state and federal governments from imposing fines and other forms of criminal punishment that are disproportionate to the seriousness of the crime for which the defendant was convicted. Some of you may remember particularly onerous fines or prison terms for a wide variety of motor vehicle offenses and misdemeanors. Challenges to these statutes have invariably raised the 8th Amendment’s proportionality argument and have often prevailed on this point.
Nor is the contemporary significance of the Magna Carta limited to criminal and civil procedure. Early versions of the Magna Carta prohibited the Crown from assessing any military tax (such as “scutage” which I described earlier), “except by the common counsel of [the] realm.” The “common counsel of the realm,” comprised as it was of representatives of English society including clergymen and nobility, was a forerunner of both the English Parliament and, later, of the US Congress.
As it evolved, the common counsel limited the monarch’s and then the government’s power to pass legislation, particularly tax legislation, without popular consent. The existence of this tradition involving tax legislation can be seen in one of our most familiar American sayings: “no taxation without representation.” The representation the Colonists knew and were describing arose from the common counsel which, by the 1770’s, had firmly established its right to be heard on tax legislation, a clear inheritance from the Magna Carta. The hated Stamp Act, passed by Parliament without any participation by the people who would be required to pay it, was opposed at the time as an illegal attempt to raise revenue in violation of the Magna Carta. Indeed, the Magna Carta was much in the mind of the colonists, some of whom contended that “the assembly of barons at Runnymede, when Magna Carta was signed [sic],” was the precedent for the convening of the Continental Congress.
What began as a peace treaty between a despotic King and his angry Barons became a lasting symbol of a written contract between the governed and their government, a contract that even included the right of rebellion when that government ruled without popular consent. The ideas in it endured and were expanded, restated and written into law governing generations of Englishmen, their colonists and, ultimately, countries around the world.
No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor.
Over time, the Magna Carta also came to represent the “rule of law” which, at its core, is an idea that all governments are bound by law. This distinction between a government which governs according to law and one which governs according to the will of a sovereign did not begin with the Magna Carta but certainly found its roots in the notion that no government official, not even one who claimed to rule by divine right and asserting absolute power, is above the law. This was truly revolutionary in 1215 and, as we have seen in the events around the world of the past few months, revolutionary even today.
Finally the Magna Carta has come to symbolize equality under the law. Certainly the Barons who met King John at Runnymede were a privileged class of male, often hereditary, landowners. But the Magna Carta also contained some protections for women, like the right to refuse to marry and the protection of a widow’s dower interest in one third of her husband’s property. It also, given the times and privileged class who authorized and authored the document, contained some provisions that seemingly applied to every person in the realm, whether “free” or not. For example, “no one” could be compelled to perform service for a knight’s fee. Even more importantly was the clause which provided that “justice” will be sold to “no one.” On the literal level, we can understand that this prohibition arose in response to the abuses of the royal justice system. But as the words have come down to us some 800 years later, we understand the fundamental legal principle that everyone, rich and poor, man or woman, regardless of color or ethnicity must be treated the same under law. It is this principle which found its expression in the Equal Protection Clause of the 14th Amendment to the US Constitution and which, as interpreted by the highest court in our land, invalidates laws that discriminate or have discriminated on the basis of race, gender, national origin or religion. It is the most American of guarantees and one which still illuminates our imperfect path to the promise of America.
A people that values its privileges above its principles soon loses both.
We can trace the profound and important Magna Carta tradition back to the Runnymede meadow nearly 800 years ago when a group of courageous Barons engaged in a revolutionary act that would resonate through the ages. It is worth remembering how much we owe to this now ancient manuscript and the ideas it represents. But we must also remember that this gift is not irrevocable and must protected and nutured in each generation. The rule of law is what separates us from every other form of government since the beginning of time and our inability or failure to recognize that is, in my view, is perhaps the biggest threat to our way of life.
On June 15, 2015, we will return again to the Runnymede meadows to recall this remarkable story. We will recognize our debt to the Barons who decided that they had had enough. Most of all, however, we will celebrate the power of the ideas that endure here and on the streets of Cairo, Tunis, Benghazi and elsewhere as students, lawyers, workers, families, soldiers and shopkeepers call for the rule of law. What a powerful and wonderful idea!
Thank you for the opportunity this has given me, a lawyer, to reflect on all we have inherited from this timeless document.
Magna Carta 800th Anniversary 2015 Committee
October 6, 2011
Magna Carta And The Pillars Of Democracy In England
The Magna Carta was a document that marked one of the first instances of democratic change in England’s history. For most of history, the nation has existed under monarchical rule. Often foreign imaginings of England are incorporated with idealised images of quaint country settings, courtiers, dukes and kings. Whilst there is some gravity in these beliefs, it certainly serves to only represent a small vain of the country’s history.
These notions lend themselves to the fantastical, and indeed, the majority of modern day conceptions of fantasy have their origins deeply rooted in English cultural tradition. It is furthered by the global appeal of Shakespeare, plays that depict the lives of kings and members of the aristocracy. Behind the scenes of all this bliss, however, remained the austere face of the country’s social and political condition. The feudal system saw England’s peasantry subjugated by the land-owners. They were not able to own land, but were able to make their living by working the land of another. This was not exclusive to England; similar hegemonic rule could be seen across the rest of the world.
However, when discussing the pillars that formed democracy in England, it is essential to illustrate where the issues existed – and for what reason change was brought about. The Magna Carta represents the beginning of such change. It was a document issued in 1215 to King John. It ordained that no freeman could be punished except through the law of the land. In this sense, it attempted to impose limits on the King’s power – a tenuous, though unmistakable beginning to the principles of democracy.
This legislation did not affect the serfs (i.e. those that were bound to work the land, representing a form of slavery in the feudal system). In hindsight, the document served more as a symbol to the people that change was possible, in addition to a warning of what was yet to come. The document was presented by the some of the King’s closest subjects. It carried profound implications, and its impact can be seen within England today and the events of the following centuries.
Yet whilst the document did a lot to incite the beginnings of change, it did not serve to catalyse any significant rebellions, actions or even permanent changes. Arguably, however, it did enough to trickle the first stones of an avalanche – influencing a series of events that over the next 500 years would result in drastic political and social changes.
It is often said that democracy is built upon certain essential pillars. Whilst it would be hard to say the Magna Carta served as one of these pillars in England, it is certainly evident in the forming of their foundations.