June 7, 2015
Magna Carta: The troubled journey to an independent judiciary.
The Independent, Sunday 7th June.
Written by Will Gore.
Click here to read the article as it appeared on the independent.co.uk
In popular perception the Middle Ages was a time of lawlessness and cruelty. And to a degree, that characterisation holds true. Crusades abroad, ill-disciplined governance at home, England in the early thirteenth century was not exactly enlightened.
The creation of Magna Carta in 1215 is all the more remarkable against such a backdrop. An unpopular king brought to heel by a written agreement sounds much too good to be true – and it was, in the short-term, with peaceable discussions giving way to civil war within a matter of months.
Nevertheless, the legacy of the charter signed by King John and the barons at Runnymede 800 years ago has been compelling, both in this country and beyond. The original agreement may not have protected rights and freedoms in the detailed way which modern-day myth occasionally suggests, but it undoubtedly set Britain on a road towards non-autocratic government.
In particular, Magna Carta achieved acceptance for two key principles. The first was that regal authority should be limited by – and separated from – the will of the people. In the immediate context of the early 1200s, that meant that taxes could not be raised without the “general consent of the realm” – and for realm read barons and the church. Even so, as a guiding principle, it was crucial.
The second fundamental doctrine was that individuals were entitled to be treated in accordance with the laws of the land and would, when accused of wrongdoing, be judged by their equals. Again, the contemporary impact of this element of Magna Carta – the famed clause 39 – was limited to the minority of British citizens who were “free men”. However, it confirmed the notion of the Rule of Law and the applicability of trial by jury, which had seen its origins during Henry II’s rule in the previous century when the first judges emerged too.
Ultimately, then, Magna Carta was a bulwark against tyranny. For thirteenth century barons it was also a tool for the advance of oligarchy, a means of protecting their role as the advisors to the king – their positions as such having been established informally during the reign of William the Conqueror. Magna Carta certainly did not envisage genuine democratic rights as they are understood today.
It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) Indeed, the continuing acceptance of a formalised and symbiotic relationship between the monarch and his (important) subjects was not without its hiccups – to put things mildly. And the development of regular parliaments in the mid- to late-thirteenth century (and especially their extension to include non-noble representatives) was largely the consequence of discord, rather than harmonious reform.
The security of parliament’s role – separated into two chambers from the mid-14th century – and the independence of the judiciary were largely dependent on the strength or weakness of successive monarchs. Henry VIII’s “great matter” and the subsequent break from Rome have been seen by many historians as the point at which parliamentary power took on a new character, although Tudor monarchs were canny enough to recognise that empowering parliament was a means to legitimising their own authority. Fundamentally, though, the monarch retained a firm grip on the power of the executive veto.
But if the Tudor period, rumbustious as it was, witnessed a new understanding of the need for balance in the relationship between executive, legislature and judiciary, so it was the dramatic failure of the Stuart kings to accept the limitations of their power which ultimately led to the more formal separation of the three arms of state.
The Star Chamber was originally conceived as a kind of supervisory body to oversee the operation of England’s lower courts and consider appeals, as well as to ensure enforcement of the law against those powerful enough to avoid the clutches of local judicial officials. Yet under James I, the Chamber effectively became the king’s private enforcement agency, meting out judgments on moral as well as legal matters. The court was used to suppress dissent and to bypass the necessity of calling parliaments.
The dismissal by James I of Edward Coke, the Chief Justice, for having suggested that the king was subject to the law, rather than the other way round, brought matters to a head. Incensed, Coke dedicated himself to writing The Institutes of the Lawes of England, which emphasised the role of Magna Carta as the basis for the common law and, notably, as having enshrined the independence of the judiciary from monarchical control. Coke subsequently drafted The Petition of Right, an updated Magna Carta, which parliament compelled the new king, Charles I, unhappily to accept. Charles responded by governing without parliament for 11 years and ramping up his persecution of those who opposed him. The English Civil War, which followed, ended with Charles’ execution, convicted by a jury of 120 officials of the highest rank available.
Coke’s assertion of Magna Carta’s formative place in English constitutional history, especially in confirming the independence of the judiciary, has been upheld with remarkable consistency throughout the last 350 years. The Glorious Revolution of 1688 and the subsequent passage of the Bill of Rights, followed a decade later by the Act of Settlement, finally – and for good – ended any pretensions that a monarch might have to absolute rule and cemented the separate functions of crown, parliament and courts.
In recent decades, constitutional changes have further reinforced the separation of state powers (even if the continued existence of the executive within the legislature raises theoretical difficulties). The last Labour government, for instance, ended the legal function of the House of Lords, transferring power to the Supreme Court as the UK’s highest legal authority, and provided for more independence in the appointment of judges.
Yet it is the great irony of Britain’s unwritten constitution that having arguably reached a point of greatest clarity, so it is up for renewed debate. The role of the European Convention on Human Rights, as legislated for by the Human Rights Act here; the existence of the Strasbourg court; clashes between ministers and judicial officials over their respective roles; and ongoing questions over House of Lords reform – not to mention the state of the Union between Scotland and England: all have become major talking points. Magna Carta, which was intended to resolve a specific set of contemporary problems in 1215, has come for many to represent a simpler, more English, representation of rights.
In the final analysis, however, it is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance. To ignore that is to disregard the struggles of those who have endeavoured to ensure respect for the Rule of Law and to maintain the delicate balance between the powers that rule our lives.
March 22, 2015
Magna Carta, Tunis and why tourists are still a soft but effective target
The Independent, Friday 20th March 2015
Simon Calder
Click here to read the article as it appeared in The Independent
Last Wednesday morning I had the good fortune to visit Salisbury Cathedral, which is making much of the 800th anniversary of the sealing of Magna Carta. Over the centuries, the cathedral has cared well for its copy of King John’s “Great Charter” of rights under the law, and it is arguably the best version of the four originals that still exist. To mark the anniversary, the twin virtues of human rights and tourism are elegantly combined in an exhibition that draws you through the Cloister to the Chapter House – the loftily spiritual home for this powerful document.
The exhibition tells of a struggle for liberty that began at Runnymede (now uncomfortably close to Heathrow) and still underpins the concept of human rights in the 21st century. This accord between the King and his barons also enshrines the principle of free movement: “In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear.”
Looking at visitors’ comments in Salisbury, I was taken by one response which read: “The world has never been safer. Have no fear.” British travellers tend to take our own human rights for granted, and these days a “great charter” is a fully laden wide-bodied jet going to Alicante.
But only one hour later, and 1,500 miles to the south, the wanton slaughter of innocents had begun in Tunis, at the 200-year-old palace resting on ancient foundations. A museum became the venue for a massacre by evil-doers seeking to bludgeon the 21st-century world back to the Middle Ages.
The 22 deaths at the Bardo Museum represent only a tiny proportion of the dreadful carnage prevailing in much of North Africa and the Middle East. But for grieving families, each is an unimaginable loss. And for the people of Tunisia, who depend on tourism, life is going to get a whole lot harder. Holiday-makers are the softest of targets, but attacking them is the fast track to destabilising any nation dependent on tourism.
The Shining Path led the way in Peru in the 1980s; the very threat that Machu Picchu visitors were a legitimate target for the Maoist guerrillas wrecked the tourist industry there. Then, in the 1990s, terrorists in Egypt adopted the strategy – most bloodily in 1997 when 62 people were killed at Luxor. Four years ago, the Argana Café in the Marrakech tourist hub of Djemaa el-Fna was bombed with the loss of 19 lives. Now it is the turn of Tunisia.
I would happily return to any or all of those places in a heartbeat; a rational assessment of risk indicates overwhelming odds in favour of a safe, rewarding experience. But I can understand anxieties about travel to North Africa.
So, where do we go from here? Some travel organisations have a blunt, immediate response: anywhere but Tunisia and its neighbours. Cruise lines can easily bypass ports that they perceive as risky, and turn off the tap of wealth that trickles in with a big ship. Package holiday companies have more complicated business models, with commitments to hotels and fleets of aircraft to deploy. But, as Thomson showed when it abruptly cancelled its entire programme to Kenya last year, the perception of danger can wipe out thousands of holidays and the benefits they bring to host communities.
If tourism in North Africa was not already looking bleak, Egypt has now decided to toughen up its visa regime for anyone with the temerity to venture beyond the mass-market Sinai peninsula.
The Arab Spring first blossomed in Tunisia in 2011, but was contaminated as it spread across North Africa. Last week, the boss of Kuoni, Derek Jones, summed up the scale of the slump in Egypt. “Cairo and Luxor were a big percentage of our business five years ago,” he told the TTG Industry Leaders Forum. And how much do they constitute now? “Zero.”
At present, Egyptian immigration bureaucracy is trivial for most visitors. It’s a two-class system. If you are going no further than Sharm el-Sheikh, Dahab or Taba on the Red Sea, you are welcomed in, free of charge so long as your passport has at least six months to run. Everyone else can buy a “visa” – really just a revenue-raising stamp for your passport – which you can obtain without fuss.
From 15 May, it becomes a three-class system. The sunseekers of Sharm continue to get an exemption for stays up to a fortnight – which covers the vast majority of holidaymakers there. Groups of tourists booked through Egyptian travel agents can also whizz through immigration. The rest of us – typically independent travellers and business people – must apply in advance to the local Egyptian Consulate for permission, with payment only in Postal Orders or cash (and “no Scottish notes” the London Consulate helpfully points out).
Anything that entangles a journey in red tape and constricts the freedom to travel is a retreat from an open, generous world. And to stifle visitor numbers is to play into the hands of those who want to deny the joy of 21st-century travel.
To try to get some perspective in the aftermath of this latest, wretched atrocity, consider the memorial to the 191 victims of the Madrid train bombings, carried out 11 years ago this month. You can find this shrine to lost loves on the concourse at the Atocha railway station in the Spanish capital.
“No fear, no revenge, just peace,” insists an inscription. “Let happiness come to our hearts again.”
Hopeless optimism? Perhaps, but hope is at the heart of every journey.
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