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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 best replica watches – 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.


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”.


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.”


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.


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?

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.

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.)

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.

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.

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.

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?’,cartier santos 100 replica 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.

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 (

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 audemars piguet replica watches 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.
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August 5, 2014

Magna Carta Lecture to South Carolina Honors College

Magna Carta, Latin for “Great Charter”, was the product of years of bitter confrontation and struggle among English King John, Pope Innocent III, the Archbishop of Canterbury Stephen Langton and 25 English Barons.  This confrontation culminated in the historic pact agreed to on June 15, 1215 and sealed by King John at Runnymede, England.  Magna Carta reshaped the relationship between the state and its citizens.  It has been called the “Turning point in English history” and the “Bulwark of our liberties”.  It is the bedrock of the concepts of freedom, justice and the rule of law.  It is the cornerstone of the unwritten British Constitution.  Magna Carta became the foundation of constitutions of various countries around the world, especially the Constitution of the United States of America in 1787.

Click on the following link to download the full lecture: Joel Collins Magna Carta Lecture SCHC Aug 2014

February 26, 2014

Magna Carta Lecture, Houston Museum of Natural Sciences, Wednesday 19th February 2014

Good evening, ladies and gentlemen. First, may I thank you for the warmth of your welcome this evening and, on behalf of Jane and me, the wonderful welcome to Houston and to Texas that we have experienced.

We were warned that “big” would be a word that occurred often to us while we were here, and it certainly applies to the way you make your visitors feel completely at home. This is our first visit to Texas, but rest assured that it will not be our last.

For some three years I had the great privilege of chairing the Hereford Cathedral Perpetual Trust, helping to raise funds for the fabric of that unique and magical building, for its wonderful, world-class choral music, and for the legacy of its artefacts across the centuries, the way in which they can speak to us today, and educate and inform future generations.

Now so many of you, by your generosity, and by your presence here this evening, are sharing in that great work. We feel that you have become members of the Hereford Cathedral family, just as we feel we have become members of the family of this amazing institution, and of the great State of Texas.

Now I must start with a confession. I am not a professional mediaeval historian, and I am not going to give you a detailed analysis of the political shenanigans which led to the sealing of Magna Carta nearly 800 years ago. Actually, of course, you might be quite glad of that!

But as the Clerk of the British House of Commons I think that I have rather a special perspective on the extraordinary event which was Magna Carta, and how it speaks to us across the centuries.

To download the full speech, please click the following link: Magna Carta Lecture Houston 19.2.14

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?”

October 13, 2011

The Continuing Importance of Magna Carta

Magna Carta, or as it is properly called the Great Charter of Liberty, was born on 15 June 1215 at Runnymede when King John – Bad King John as he is more commonly known – was persuaded to accede to a number of demands made by a powerful group of his Barons. It may well have been short lived as it was swiftly declared by Pope Innocent III, at John’s urging, to be null and void. It was, perhaps not unreasonably, said to have been procured through extortion.

It was however one of those rare pieces of legislation, if not perhaps unique, which was not simply revived but has been reaffirmed on numerous occasions in the centuries since John’s death. It was, for instance, reissued three times by John’s son, Henry III. It was entered on the Parliament Rolls by Edward I on 28 March 1297. It has retained its statutory force ever since, although its application has been severely curtailed by a number of amending statutes; only Chapters 1, 9 and 29 remain in force. Of those three sections Chapter 29, or chapters 39 and 40 as it was in the original 1215 version, is the one that resonates today as recent events in Parliament have shown. I refer of course to David Davis MP’s decision to stand down from Parliament and fight a by-election on the issue of 42 day detention. For him as for so many people here and around the world Magna Carta, and chapter 29 in particular, remains an enduring symbol of freedom; of the fundamental rights that lie at the very heart of our open and democratic societies as they have developed over the long centuries from Runnymede.

To read this in full, download the PDF below:
The Continuing Importance of Magna Carta

The Meaning and Legacy of the Magna Carta

The six essays of this symposium address different aspects of the meaning and legacy of the Magna Carta—“the Great Charter” in Latin. Although social scientists and legal scholars routinely describe the Magna Carta as foundational for concepts of justice and liberty, the charter itself is rarely assigned in political science classes or scrutinized by political theorists. The aim of the symposium is twofold: first, to affirm the document’s historical rootedness and intellectual richness, and, second, to explore the ways in which the Magna Carta’s text and reputation have informed the development of common law and modern politics. The Magna Carta was the product of times very different from our own, yet it continues to be cited by jurists and human rights activists around the globe. This symposium makes the case for why political scientists should take an interest in the Magna Carta, not just as a cultural icon, but as a durable political text.

To read this in full, download the PDF below:
The Meaning and Legacy of the Magna Carta

Constitutional Justice: Lessons from Magna Carta

1. It is a great honour to address you and deliver the fourth Magna Carta lecture – especially since the previous three lectures were Lord Woolf, Professor Vernon Bogdanor and Baroness (Shirley) Williams. I appreciate that, in such company, I am very much the fourth team, especially since it is only very recently that I have been called form the subs bench to replace no less a personage than, Professor Ing Vaclav Klaus CSc, the President of the Czech Republic, who was to have given the lecture. My only qualification for being here is certainly not any deep knowledge of the constitution but the happenstance that one of the very pleasant by-products of being Master of the Rolls is that I am also Chairman of the Magna Carta Trust. My theme this evening touches on some of the issues discussed by Professor Bogdanor, whose lecture I read with great interest and admiration only after I had prepared a draft of what I might say this evening.

2. Magna Carta is rarely out of the news. The burning issue of last week, which I might call the 42 days’ point, provoked much mention of Magna Carta. For example in his statement announcing his decision to stand down and cause a by-election in his constituency at which he which he will stand again David Davis noted that yesterday was the anniversary of Magna Carta, which he described as “a document that guarantees the fundamental element of British freedom, habeas corpus, the right not to be imprisoned by the state without charge or reason”. He asked too what the House of Lords is there for if not to protect Magna Carta. It would not be appropriate for me to express my views on the 42 days point (let alone on Mr Davis’ decision) but what the debate has shown yet again is that Magna Carta remains an enduring symbol of our freedom.

To read this in full, download the PDF below:
Constitutional Justice: Lessons from Magna Carta

Magna Carta & the New Europe

1. Introduction

It is indeed a great honour to be invited to deliver the third Magna Carta lecture in a college which has led the way in the higher education of women, the half of the civil community that was for millennia simply left out of the scope of human rights declarations and human rights legislation. Royal Holloway College, founded in 1879, was the younger sister of Bedford College which in 1849 uniquely in England opened its doors to women. They could not take degrees until the degree examinations were extended to women in 1878. Since then, the two colleges, now merged, have produced a stream of excellent graduates, many of whom have made a valuable contribution to their professions and to public life. It is a great honour too, to keep such distinguished company as that of your former lecturers, Lord Woolf and Professor Bogdanor, who have both made conspicuous contributions to the cause of liberty.

It is a timely moment for this lecture, as once again there is much speculation in political circles about yet another round of counter-terrorism legislation, the eighth since 1997. There has even been a suggestion from the redoubtable Home Secretary, John Reid, that the Human Rights Act of 1998, which incorporated the European Human Rights Convention of 1950 into British law, may have to be abrogated for the purpose, and this at the very time Northern Ireland is being brought back within those provisions. The Government’s policies on terrorism have been characterised by instant reactions, a pursuit of headline stories intended to show how tough the Government is, and a marked lack of consultation with Parliament, the judges and even the police. The new indications that the Government will now pursue
a cross-party consensus based on extensive consultation before rushing into legislation is very welcome indeed, though it appears to be something of a death-bed conversion.

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Magna Carta & the New Europe

The Sovereignty of Parliament or the Rule of Law?

Thank you for the great if not excessive honour you have done me by inviting me to deliver the second Magna Carta lecture. The first, delivered last year, was given by that most distinguished former Lord Chief Justice, Lord Woolf, who was not only a great judge but also a great writer on the law. Indeed, he combines, so it has always seemed to me, the best qualities both of the lawyer and of the academic. When I reread his lecture, I was reminded of a comment made by the greatest of American novelists, Henry James, who, to our immense benefit settled on these shores, and who says of one of his characters, that he had `the wisdom of learning and none of its pedantry’. Lord Woolf is a difficult act to follow, especially for someone, like myself, who is not a lawyer. Admittedly, I was promoted, inaccurately, by `The Times’ in a recent article, to be `a leading constitutional lawyer’ Sadly, I am not. F.E.Smith once said that the law was an arid but remunerative mistress. In me, I fear, you will see only the arid side.

I am in fact a Professor of Government. But, of course, no one can hope to understand modern government without at least a smattering of legal knowledge. I am therefore, in a sense, a parasite battening upon lawyers, since my understanding of government has been so much influenced and enriched by the writings of lawyers – both the practitioners and the academics. I only wish that I could have given back as much as I have taken.

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The Sovereignty of Parliament or the Rule of Law?

Magna Carta; a Precedent For Recent Constitutional Change


790 years ago, John, the King of England was having a little local difficulty with his barons. His attempts to defend his extensive dominions across the Channel, including Normandy and a considerable portion of western France, had been a disaster. This was despite the exorbitant demands that he had made of his subjects…

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Precedent Recent Constitutional Change

Magna Carta at Bury St Edmunds

The early settlers in the United States took with them copies of the Magna Carta. One undertaking given by King John in that Charter was as follows:

No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him except by the lawful judgement of his peers or by the law of the land. To no-one will we refuse or delay right or justice.’

It is that undertaking for which Magna Carta is recognised and revered. It was an undertaking which Parliament was later to embody in our statute law. It was an undertaking which was, in due course, reflected in the writ of Habeus Corpus. It is that undertaking which the American Bar Association had in mind when they built in Runnymede the rotunda that stands as a tribute to Magna Carta, a symbol of freedom under the law. It is that undertaking, which we are celebrating so gloriously today.

I have to tell you that the undertaking for which Magna Carta is remembered today was not the foremost concern of the barons, who met, as I am firmly persuaded they did, at Bury St Edmunds on 20 November 1214.

Chapter 8 of the Charter provided: ‘no window shall be forced to marry so long as she wishes to live without a husband. Hitherto, if a baron died leaving a widow, her remarriage would be at the King’s command. Henry II had under his custody a widow called Isabel de Clare, whose estates in Normandy were so considerable that he consigned her to the Tower of London for safety.

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National Society Magna Charta Dames and Barons

Freedom Under the Law

This series of lectures might have been sub-titled “Four Professors and a Common Lawyer”: you have had four professors; I hope you will not feel that this is the funeral.

1. In 1765 Blackstone described Magna Carta as “the Great Charter of Liberties, which was obtained, sword in hand, from King John”. As Macaulay might have said: “Every schoolboy knows” that the date of Magna Carta is 15 June 1215 and the place Runnymede. But I suspect that only a small part of today’s population knows much about the events in the early part of the 13th Century which led up to it. Until the last few months I confess that I would have been hard pressed to tell a Hertfordshire jury, here in St Albans, anything worthwhile about it.

2. For that reason, before I turn to look with you at some of the Chapters in Magna Carta, I want to digress to try and put those momentous days of June 1215 in some kind of setting. As a mere common lawyer I ask the indulgence of the academics and historians among you if you do so with a broad brush.

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Freedom Under the Law

The Assault on Liberty

Winston Churchill described the Magna Carta as “the foundation of principles and systems of government of which neither King John or his nobles dreamed”

Now in Politics we’re used to the law of unintended consequences. Normally it is the bad outcome of good intentions, that you set out to create a good law and it goes wrong, I don’t know, say the child support agency or the war on Iraq, whatever it might be, that went wrong and we’re normally afflicted with this. What we very rarely see, is something like Magna Carta, which must go down as the greatest example of the law of unintended consequences in British history, because here you had a deal, frankly a slightly squalid deal, between a bunch of robber barons, greedy, robber barons and an even greedier King. Yet out of that slightly squalid deal, we have got the underpinning of the greatest history of freedom in the history of the world. The underpinning of the greatest liberties in the history of the world. Not just ours, but America’s, all of the Commonwealth and much of the rest of the world, have copied what we’ve done from that. So a formidable, unintended consequence, but one of enormous benefit, for not just ourselves, but for the entire civilized world.

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The Assault on Liberty



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