November 24, 2015
Magna Carta and Comparative Bills of Rights in Europe
Magna Carta and Comparative Bills of Rights in Europe, Maya Hertig Randall, Professor of Constitutional Law at Geneva University, LL.M. (Cambridge)
It is an honour to be part of this celebration, commemorating the 800th anniversary of the Magna Carta, an iconic document which has become a symbol of liberty and the rule of law on both sided of the Atlantic. Within Europe, the text of the Magna Carta has come to express a common constitutional heritage. Textbooks and treaties on civil rights and liberties throughout Europe invariably refer to the Magna Carta as a foundational document of fundamental right, showing that the Charter’s reach goes well beyond its country of origin.
The aim of this short contribution is not to trace the actual – direct or indirect – influence of the Magna Carta on the constitutions and their Bill of Rights of the various Member States of the Council of Europe. Such endeavour would be a daunting task indeed. Ideas travel across space and time; they evolve, are reinterpreted and transformed in this process. We would first need to establish the original meaning of the Charter, i.e. what it meant in the specific context of its time. We would then need to retrace the long trajectory of the ideas expressed in the Charter, their journey over the Atlantic, and the Charter’s impact on the founding fathers of the United States Constitution. We would thereafter need to explore the Magna Carta’s reception in various parts of the European continent, partly via the influence of the US constitution. This would be a task for which a constitutional lawyer may not be well equipped.
The contemporary relevance of the Magna Carta is not only dependent on its direct or indirect imprint on modern constitutions. The Magna Carta hugely matters because of its symbolic value, and because its ideas still resonates with us today. I will adopt a contemporary reading of the Magna Carta, highlighting its resonance and the principles it has come to embody. This approach treats the Magna Carta like a living tree, and not as a document the meaning of which is fixed in time. Put differently, it rejects an originalist reading, privileging a dynamic interpretation. This is an approach many domestic Courts – and most prominently the European Court of Human Rights – adopt when they are called upon to construe the meaning of fundamental rights provisions.
The clause of the Magna Carta which without doubt has had the strongest resonance is almost too well known to be cited:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
The famous clause 39 has become the embodiment of two powerful and connected principles: Firstly, personal freedom, consisting mainly of, but not limited to, the right to liberty and security, and secondly, the rule of law and due process of law. Together, these principles form a bulwark against arbitrary rule. The limits of personal freedom can only be determined by law and not by the capricious will of the sovereign.
The idea of freedom under the law has been reasserted in the following Centuries, prominently in the Declaration of Rights of Man and Citizen of 1789, which is nowadays part of the French Constitution and upheld by the French Constitutional Council. Art. 7 protects specifically the right of liberty and security, holding that “[n]o person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law.” Other provisions, mainly Art. 4 and 5, protect personal freedom more generally, stating that the limits to liberty can only be determined by law, and that “nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”
Freedom under the law forms part of the common constitutional tradition reflected in Bills of Rights, in Europe and beyond. In addition to specific provisions on the right to liberty and security, constitutions require, either in specific or in general limitation clauses, that restrictions of fundamental rights need to be prescribed by law. We find this requirement also in the Charter of Fundamental Rights of the European Union, which can be viewed as codifiying common constitutional traditions of the EU Member States. According to Art. 52 para. 1 of the EU Charter, “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law.”
Beyond the protection of individual rights, the Magna Carta contains the seed of the more general principle of the rule of law, or its German or French counterpart, the ‘Rechtsstaat’ or the ‘Etat de droit’. This more general principle can be derived from the precept reflected in clause 39 of the of the Magna Carta that the King is not above the law but bound by law.
European constitutions underscore that the rule of law is a central element of a legitimate constitutional order. Virtually all European constitutions explicitly refer to rule of law principles. A prominent example is the German Basic Law, adopted in 1949, in the aftermath of Word War. But also more recent constitutions, in particularly those adopted against the backdrop of totalitarian or authoritarian past, invariably commit to the Rule of Law. To name just one example : The Constitution of Serbia holds in Art. 1 that the Republic of Serbia is a state “based on the Rule of Law”, and Art. 3 holds that “the rule of law is a fundamental prerequisite for the Constitution which is based on inalienable human rights.”
Apart from the Rule of Law, the Magna Carta is also an evocative document for us today, because it has come to embody the very idea of a modern Constitution: it represents, in Sandra Day O’Connor’s words, the “written embodiment of fundamental laws », « the more general notion of a written statement of fundamental law binding upon the sovereign state.”
The fundamental nature of the principles enshrined in the Magna Carta, and their written form, have earned the Magna Carta the attribute of the “world’s first written constitution”. This understanding of the Magna Carta resonates in the famous judgment Marbury v. Madison, describing the constitution as “superior, paramount law, unchangeable by ordinary means”, and implying that laws clashing with the constitution are null and void. As is well-known, Marbury v. Madison founded the Supreme Court’s power of judicial review. In Europe, constitutional review is a much more recent phenomenon. The thinking of Marbury v. Madison has been steadily gaining ground since World War II and has become the dominant paradigm of upholding the rights enshrined in domestic constitutions.
Interestingly, the authors of the Magna Carta also provided for supervisory arrangements aimed at controlling the King. Based on clause 61, a supervisory body representing the Barons had the power to oversee compliance with the Magna Carta and to take in extremis retalitatory measures against the faulty King. Although this mechanism was ineffective, it can be viewed – based on a contemporary reading of the Charter – as expressing the idea of separation of powers : ambition must be made to counteract ambition. Maybe it can even be viewed as an embryonic precursor of judicial review.
The Magna Carta has not only come to embody the concept of a written constitution, of which Bills of Rights are today an essential part. Its provisions also encapsulate ideas which have grown over time into fundamental rights enshrined both in Europe’s contemporary Bill of Rights.
To illustrate this point, let me refer again to the famous clause 39. Apart from the right to personal freedom, clause 39 – together with clause 40 – expresses the idea of procedural due process, fair trial and access to justice. Individual liberty can according to clause 39 only be curtailed through lawful judgments; moreover, precepts of a fair trial and access to justice have to be respected: In the wording of clause 40: “To no one will we sell, to no one deny or delay right or justice.” The idea that justice must be accessible also underpins clause 17, holding that “[c]ommon pleas shall not follow our court but shall be held in some fixed place”.
Clause 45 is complementary to fair trial guarantees and related to judicial independence. It lays down a requirement which has become common place and is mentioned in the Basic Principles on the Independence of the Judiciary, adopted in 1985 within the framework of the UN – the requirement that judges have appropriate training or qualifications in law. Clause 45 reads: “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”
Clauses 39 and 40, and the related clauses of the Magna Carta can be viewed as the ancestors of procedural safeguards against arbitrary detention, and the right to a fair trial, enshrined in Art. 5 and 6 ECHR. Corresponding provisions in domestic constitutions have become commonplace on the European continent, mainly through the direct impact of the European Convention.
Another contemporary right which can trace its lineage to Magna Carta is the right to just and proportionate punishment. In the Magna Carta, we find it expressed in clause 20 and 21. The relevant part of clause 20 reads as follows: “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.”
A contemporary expression of the right to just and proportionate punishment can be found in Art. 49 para. 3 of the EU Charter of Fundamental Rights, holding that the The EU Charter holds that “[t]he severity of penalties must not be disproportionate to the criminal offence”.
The Constitution of Cyprus contains a similar provision. In addition to these explicit guarantees, the right not to be subject to disproportionate punishment is implied in the prohibition of inhuman and degrading penalties. The Vinter judgment of the European Court of Human Rights ruling out incompressible life sentences is a recent link in this chain of development.
Another clause of the Magna Carta which still resonates with us today is clause Clause 42: “In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear (…)”.
Clause 43 also refers to free movement, reflecting economic rationales: “All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs.” Clause 43 evokes to contemporary readers economic liberties, enshrined in many European constitutions under different names (‘occupational freedom’ in Germany, ‘economic freedom’ in Switzerland, ‘liberté d’entreprendre’ » in France). For the EU-Member States, it evokes the four fundamental market freedoms.
Moreover, the Magna Carta contains clauses which regulate the taking of horses, carts, wood, issues of inheritance and guardianship, or the remarriage of widows. These clauses respond to concrete grievances against the King. Abstracted from their specific context, they aim at safeguarding interests protected nowadays by the fundamental rights to property, and the prohibition of forced marriage.
Contemporary Bills of Rights are worded in a more abstract and principled way than the Magna Carta, expressing atemporal and universal principles. Nevertheless, like the many detailed provisions of the Magna Carta, fundamental rights have emerged from history, from grievances against the concrete experience of injustice.
This is clearly expressed in the UDHR, referred to by Eleanor Roosevelt as “the international Magna Carta of all men everywhere.” According to its preamble, the UDHR has been declared, as a reaction to “barbarous acts which have outraged the conscience of mankind”.
Put differently, fundamental rights and freedoms are “Rights from Wrongs” (Alan Dershowitz). They are concrete answers to centuries’ old experience of injustice and human suffering which have shaped our understanding and the meaning of human dignity. The insight that human rights are deeply rooted in our history makes them fixed stars to navigate by at difficult times. The star of the Magna Carta has been shining, for instance, in the context of the “war against terror”: It has been invoked as a ‘fixed star’, reminding us to remain eternally vigilant when human rights come under pressure and are set aside for security concerns. In the United States, the Magna Carta was referred to in the major cases involving the indefinite detention of enemy combatants, Padilla v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush. In the Boumediene decision, Justice Anthony Kennedy, writing for the majority, referred to Article 39 of the Magna Carta. He held:
“Magna Carta decreed that no man would be imprisoned contrary to the law of the land…Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it…gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”
Kennedy’s understanding of Magna Carta is to view it as a document whose principles have grown over time. He traces the United States Constitution, and habeas corpus, back to the Magna Carta, establishing a link between the ancient guarantee of Art. 39 with 21 Century guarantees through historical progression.
In a similar vein, In the United Kingdom, Lord Bingham’s opinion referred to the Magna Carta in the famous judgment A. and others v. The Secretary of Home Department, handed down on 16 December 2004. This judgment concerned indefinite detention of foreign nationals suspected of terrorism under the Anti-terrorism, Crime and Security Act of 2001.
Lord Bingham held:
“In urging the fundamental importance of the right to personal freedom (…), the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom.”
In referring to Magna Carta and linking it to the subsequent developments in the 17th Century and contemporary law, Lord Bingham emphasises continuity. The long liberal tradition and the constitutional values traced back to Magna Carta embody stability at times of crisis; they offer reassurance at times of turmoil. They provide the normative, lasting framework which cannot be set aside by current majorities.
The legacy of Magna Carta is not confined to the United Kingdom. Lord Bingham implies this by referring to Art. 5 of the European Convention, which – like the Magna Carta – recognizes the prime importance of personal freedom. Through the of liberty and security, and the right to a fair trial, enshrined in the European Convention, the spirit of Magna Carta has been spread in the 47 Member States of the Council of Europe.
In my home country, Switzerland, we celebrated last year the 40th Anniversary of Switzerland’s membership of the Convention. Looking back four decades, legal scholars concluded that Art. 5 and 6 of the Convention are the provisions which have left the most profound imprint on the Swiss legal and constitutional order. It was thanks to the ECHR, for instance, that Switzerland revised its legal framework to put an end to the practise of so-called administrative detention: Between the 1930s and the 1980s, thousands of people were detained on vague grounds and without access to a court.
Administrative authorities locked up people for years without a trial, on the grounds including being “work-shy” or “immoral”. The Swiss Government apologised to the victims of administrative detention in 2010 and acknowledged the injustice suffered. The process of rehabilitation and dealing with this dark chapter of our history is still ongoing.
Unfortunately, these debates do not occur in a context celebrating the spirit of Magna Carta as part of our common constitutional heritage. They occur in a context where it has become commonplace to invoke another foundational document, the Swiss Federal Charter of 1291, which is considered the first building block of what was to become the Swiss Federal State. Designed to free Switzerland from Habsburg rule, the Swiss Federal Charter of 1291 expresses opposition to “foreign judges”, e.g. judges imposed by the Habsburg rulers. Fears of foreign rule are mobilised today to reject the European Convention – inaptly labelled as foreign law – and the judges of the European Court of Human Rights – decried as “foreign judges”.
This example shows that symbols and myths matter. Human rights and constitutionalism need powerful symbols like the Magna as an expression of a long lasting and transnational tradition.The importance of anchoring human rights in history and tracing them back to a foundational document has also been recognised outside Europe. On the African continent, a document dating back to the same period as the Magna Carta receives increasing attention. The so-called Manden-Charter was declared by the founder of the Mandingo Empire and the assembly of his wise men in a region located today in Mali. The content of the Charter has been orally handed down from generation to generation. It has been annually celebrated at commemorative ceremonies to keep its content alive. In 2009, it was inscribed by UNESCO on the Representative List of the Intangible Cultural Heritage of Humanity. In the same year, the Magna Carta was inscribed on UNESCO’s Memory of the World Register.
Like the Magna Carta, the Manden Charter can be read as expressing fundamental values underlying human rights and constitutionalism. In simple language, the Manden Charter underscores freedom and equality, with a universalist aspiration. Based on a contemporary reading, we can find the seeds of essential human rights, including the right to life, the prohibition of slavery, the right to food, the right to bodily integrity and freedom of expression. The Manden Charter reads:
1.The hunters declare:
Every human life is a life.
It is true that a life comes into existence before another life
But no life is more ‘ancient’, more respectable than any other
In the same way no one life is superior to any other
2. The hunters declare:
As each life is a life,
Any wrong done unto a life requires reparation.
No one should gratuitously attack his neighbour
No one should wrong his neighbour
No one should torment his fellow man
5. The hunters declare:
Hunger is not a good thing
There is nothing worse than this on this earth
As long as we hold the quiver and the bow
Hunger will no longer kill anyone in the Manden
If by chance hunger were to arrive,
War will no longer destroy any village for the acquiring of slaves
That is to say that no one will from now on place the bit in the mouth of his fellow man
In order to sell him.
Furthermore no one will be beaten
And all the more so put to death because he is the son of a slave
6. The hunters declare
The essence of slavery is today extinguished
‘from one wall to the other’ from one border to the other of the Manden
Raids are banned from this day onwards in the Manden
The torments born of these horrors have ended from this day onwards in the Manden
What an ordeal this torment is!
Especially when the oppressed has no recourse
The slave does not benefit from any consideration
Anywhere in the world.
7. People from the old days tell us:
‘Man as an individual
Made of flesh and bone
Of marrow and nerves
Of skin covered in hair
Eats food and drink
But his ‘soul’, his spirit lives on three things:
He must see what he wishes to see
He must say what he wishes to say
And do what he wishes to do
If one of these things were to miss from the human soul
It would suffer and would surely become sick
In consequence the hunters declare:
Each person from now on is free to dispose of his own person
Each person is free to act in the way he wishes
Each person disposes of the fruit of his labour from now on
This is the oath of the Manden
For the ears of the whole world.
It is up to us to ensure that the Manden Charter and the Magna Carta will continue to resonate on their respective continents and beyond – for the ears of the whole world.
October 26, 2015
Magna Carta: Did she die in vain?
Magna Carta: Did she die in vain?
Baroness Hale, Deputy President of the Supreme Court, Gray’s Inn, 19 October 2015.
Click here to read the article as it originally appeared on the UK Supreme Court website.
Click here to download this speech as a PDF.
My title comes from a famous clip from ‘Hancock’s Half Hour’, first broadcast on 16 October 1959, where Tony Hancock mimics the role of Henry Fonda in ‘Twelve Angry Men’, trying to persuade a jury to his point of view. ‘Does Magna Carta mean nothing to you?’, he asks. ‘Did she die in vain?’ But he seems to have had just as many misconceptions about Magna Carta as the authors of 1066 and All That, and probably most of the rest of us, at least until we began to research it for the purpose of this 800th anniversary. For he went on: ‘that brave Hungarian peasant girl who forced King John to sign the pledge at Runnymede and close the boozers at half past ten’. If that were indeed what the King had agreed to, she would certainly have died in vain, now that the boozers can stay open much later but many are closing because alcohol is so cheaply available in retail outlets that people do not feel the need to go out to drink.
This lecture series has certainly helped us to understand more about what Magna Carta really meant. Lord Judge opened the series with a rattling good yarn about how it came about, how it was annulled, how it was reissued by King John’s successor, and several times later, how it survived and was revived in later centuries on both sides of the Atlantic. Lord Neuberger compared it to the near- contemporary idea of the Holy Grail, because it later achieved similar mythical status. Sir John Baker will be exploring the Templar connection between 1215 and 1628. What I want to do is to explore its contemporary relevance. Judicial decorum dictates that I should do so without entering into party political controversy. But perhaps I can approach that delicate task through three other anniversaries which are celebrated this year.
Although some historians tend to be dismissive of the importance of Magna Carta, we lawyers can trace at least three great ideas back to the original, the Magna Carta of 1215. The first and greatest idea stems from chapters 39 and 40 of the original Charter, combined as chapter 29 in the 1216 and all later versions. It seems appropriate to quote from the 1297 Charter,4 in the wording which still appears on the statute book today:
‘No free man shall be taken or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will we not pass upon him, nor condemn him, but by the lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man right or justice.’
As Lord Bingham has said, those words still ‘have the power to make the blood race’. They embody the individual’s right to life, liberty and property, not to be arbitrarily infringed by the rulers, but only in accordance with the law.
The second great idea came from chapter 12:
‘No scutage or aid is to be imposed in Our Kingdom except by the Common Counsel of Our Kingdom unless for the ransoming of Our person and knighting of Our first-born son and for marrying once Our first-born daughter and for these only a reasonable aid is to be taken.’
This was followed up by chapter 14, another of my favourites:
‘And in order to have the Common Counsel of the kingdom for the levying of an aid . . . or for the levying of scutage We are to cause the Archbishops Bishops Abbots Earls and Greater Barons to be summoned individually by Our letters and moreover We are to have a general summons made through Our Sheriffs and Bailiffs of all who hold in chief of Us for a fixed day at least forty days thence and at a fixed place . . .’
My own blood raced shortly after the last Parliament was dissolved, when I received just such a summons, giving me exactly 40 days’ notice of ‘a certain Parliament to be holden at Our City of Westminster’.
Sadly, chapters 12 and 14 did not survive into the 1216 and later reissues. They were not denied, but being deemed ‘important but doubtful’, they were ‘deferred until we have fuller counsel, when we will, most fully in these as well as other matters that have to be amended, do what is for the common good and peace and estate of ourselves and our kingdom’. They never reappeared.
The third great idea, which permeates the whole Charter, is that the King and his officials are as much subject to the laws of the land as are his subjects. The rule of law is not one-way traffic: not only do the governed have to obey the law, but so do the governors. This was reinforced by my own favourite chapter in the 1215 Charter, chapter 42, also sadly omitted from the later reissues:
‘We will not appoint Justices Constables Sheriffs or Bailiffs except from such as know the law of the Kingdom and are willing to keep it well.’
The closing words of what is now chapter 29 also embody the individual’s right to access to justice, before an incorruptible decision-maker who will judge according to law and not by the size of the bribe, which is the first requirement of any ‘impartial tribunal’.
Further, by chapter 60 of the original Charter:
‘Moreover all the aforesaid customs and liberties which We have granted to be maintained in Our kingdom as far as We are concerned with regard to Our own men all the men of Our Kingdom both Clergy and Laity are also to observe so far as they are concerned with them with regard to their own men.’
The promises made by the king to the barons were to be cascaded down through the feudal ranks. These are the three great pillars of modern constitutionalism – the liberties of the individual, the consent of the people to taxation and other burdens, and the rule of law – but they all beg the question: what is the law and who makes it? The answer was certainly not clear in 1215 and took many centuries to establish. But where stand those three great ideas today?
As to the first, I do not propose to discuss where we are with the substance of each of the rights renumerated in what became chapter 29, rather to ask where we are with the idea of such rights. And where better to look than another important anniversary which we celebrate this year, the 250th anniversary of the great case of Entick v Carrington? Contrary to popular belief, this was not a case about general warrants, but it established some important principles which are with us to this day. And as are we today, it was concerned with the delicate balance between the needs of effective government and the freedom of individuals to oppose such government. Oliver Cromwell had little doubt about which should prevail, allegedly saying that “your magna farta cannot control actions taken for the safety of the Commonwealth”. He was not alone. The power of the Secretaries of State, the King’s principal ministers, to issue warrants without any judicial authority to apprehend, detain and question people suspected of treason or even seditious libel was recognised in the case law of the King’s Bench.
The chain of events which culminated in Entick v Carrington began with a series of cases prompted by issue No 45 of The North Briton, a weekly news sheet which was highly critical of the King and his government. The anonymous author, John Wilkes MP, countered the plea in the King’s speech to Parliament for ‘that spirit of concord, and that obedience to the laws, which is essential to good order’, with the retort that the ‘spirit of concord’ was not to be expected of people who were being made subject to arbitrary searches and seizures, rather the ‘spirit of liberty’ should rise up in proportion to the grievance they felt – ‘freedom is the English subject’s Prerogative’.
Lord Halifax, Secretary of State, issued a general warrant, authorising the King’s Messengers to search for the unnamed authors, printers and publishers of The North Briton and to seize them and their papers. Wilkes and a number of printers and apprentices were rounded up under the warrant, eventually achieved their release and brought actions for false imprisonment and trespass. Wilkes, of course, was a prominent politician but the others were ordinary folk who had never brought such actions before. The juries found for the plaintiffs and awarded them large sums in damages. In none of these cases was the issue of the legality of such warrants clearly raised and decided, although both Chief Justice Pratt, of the Court of Common Pleas, and Lord Mansfield, Chief Justice of the Court of King’s Bench, expressed the view that they were not.
Indeed, Pratt CJ, in declining to interfere with the jury’s awards, observed that the jury had been struck by the Secretary of State ‘exercising arbitrary power, violating Magna Carta, and attempting to destroy the liberty of the kingdom’. The result was that it became unsafe to rely on general warrants and no more were issued.
Matters did come to head with Entick v Carrington. Halifax had issued a specific warrant, authorising Carrington and three other King’s messengers to search for the plaintiff, to seize and apprehend him, and bring him together with his books and papers, before the Secretary of State to be examined concerning his authorship of The Monitor, another weekly news-sheet, which was said to contain ‘gross and scandalous reflections and invectives upon His Majesty’s government and upon both Houses of Parliament’. The jury found that the messengers had broken and entered the plaintiff’s house, had stayed there for four hours, all the time disturbing him in his possession thereof, had searched several rooms, and in one bureau or writing desk, and several drawers, had read over and examined several of his papers, and seized and taken away some of his books and papers. They had also seized and taken away the plaintiff, who had then been released on bail, and was released from his recognisances a few months later. This was all part of the government strategy. They did not generally plan to prosecute for sedition, merely to harass and disrupt publication. Cleverly, Entick’s claim was not for false imprisonment, but for trespass to land and goods. The jury returned a special verdict, setting out the facts and asking whether the search and seizure in pursuance of the warrant were lawful; if not, they awarded £300 in damages. This time, the issue of the legality could not be avoided. Lord Camden, as Pratt CJ had become, presiding over the full Court of Common Pleas, was determined to decide it. The court found for the plaintiff.
As to the claim that such warrants had been in use, at least since the Glorious Revolution, ‘[T]he usage of these warrants since the Revolution, if it began then, is too modern to be law; the common law did not begin with the Revolution; the ancient constitution which had been almost overthrown and destroyed was then repaired and revived; the Revolution added a new buttress to the ancient venerable edifice.’ As to the lack of challenge hitherto: ‘It must have been the guilt or poverty of those upon whom such warrants have been executed, that deterred or hindered them from contending against the power of a Secretary of State and the Solicitor of the Treasury, or such warrants could never have passed for lawful till this time.’
The court had to accept that there were binding precedents recognising the power of the Secretary of State to issue warrants of arrest and committal, not only for high treason, but also for seditious libel. Departing from them would be more damaging to the law than following them, even though the court disapproved of them as contrary to history. But it refused to go further and allow for searches and seizures. The evidence given in all the earlier cases which Pratt CJ had tried had shown how these could be used in an arbitrary and speculative manner:
‘If this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred that no man can set his foot upon his neighbour’s close without his leave; . . . if there was [such a law] it would destroy all the comforts of society; for papers are often the dearest property a man can have.’
Once again, the appeal is to history, to the venerable edifice of the common law. Not only that, although the action was for interference with property, the real gravamen was seen as the interference with privacy. This is a clear foretaste, not only of article 4 of the American Bill of Rights, but also of the ‘right to respect for his private and family life, his home and his correspondence’, now protected by article 8 of the European Convention. The court also held that where torts had been committed, there was no defence of state necessity. There could be limits placed on liberty, for it must not become licentiousness, but if Parliament wanted to permit the seizure of seditious libels before they were published, it would have to legislate to do so. Furthermore, if Parliament wanted to authorise state officials to commit torts, it would have to do so in clear terms. This too is a clear forerunner of what we now call the principle of legality – that if Parliament wishes to legislate to interfere with fundamental rights, it must make itself crystal clear, so that Parliamentarians understand what they are voting for and are prepared to take the political risk in doing so.
An example is the very first case to be heard in the Supreme Court of the United Kingdom, Ahmed v Her Majesty’s Treasury,16 where we held that the very generally worded power in the United Nations Act 1946, to make Orders in Council in order to comply with our obligations under the United Nations Charter, did not entitle the government to over-ride fundamental rights and thus to make provision for freezing the assets of suspected terrorists without due process of law.
Entick v Carrington, as it seems to me, provides the link between the first great idea in Magna Carta and the present day. There is the appeal to the ‘ancient constitution’, the common law which would be found in the ‘books’ if it existed. There is the recognition that governmental power must not only be exercised in accordance with the law, but that the object of the law is to avoid the arbitrary and capricious use of power, and that there must be proper judicial safeguards for that purpose. All of these principles are with us to this day. They are enshrined in the European Convention on Human Rights and explain why so many of its guarantees are as much concerned with process as they are with outcomes.17 But we should not forget that these principles are also enshrined in the common law.
That brings me to the second great idea which we can trace back to Magna Carta. In what became chapter 29 the King promised not to violate the rights of free men except by the lawful judgment of his peers or the law of the land. But what was the law of the land? At that stage, it could only have been ancient custom and practice, which developed into the common law, and perhaps the decrees of the King. It is interesting to compare the two great medieval treatises on The Laws and Customs of England. Glanvill, writing in about 1190, before Magna Carta, included the statement that ‘what please the Prince has force of law’; but Bracton, writing in about 1230, left this out, saying that ‘whatever has been rightly decided and approved with counsel and consent of the magnates and general agreement of the community, with the authority of the king or prince first added hereto, has the force of law’. As he explained, ‘the King ought not to be subject to man, but subject to God and the Law’.
In the original Magna Carta, the King had also promised not to levy taxes without consent, save in a very limited number of customary circumstances. The body which was there contemplated as giving that consent was the Great Council of the realm, summoned in accordance with Chapter 14, a clear forerunner of today’s House of Lords. The earliest use of the word ‘Parliament’ to refer to the Great Council was in 1236. But another anniversary which we are celebrating this year is the 750th anniversary of Simon de Montfort’s second Parliament in 1265.
Parliament is holding a Festival of Freedoms to commemorate what is often thought of as the first real Parliament. The practice of summoning two ‘knights of the shires’ from each county in England had already begun. De Montfort added to this by summoning two burgesses from the boroughs. This became the invariable practice from 1327. Thus the House of Commons took the shape which it retained until the great Reform Act of 1832 took the first faltering steps towards universal suffrage, a process which was only completed in 1928, when we became a real democracy.
No doubt many Kings would have done without Parliament if they could. But the reality was that they needed Parliament’s consent if they were to be able to raise the taxes they needed to wage their wars. Not only that, by the mid 15th century, Sir John Fortescue, Chief Justice of the King’s Bench, in his treatise In Praise of the Laws of England, could say that ‘The King of England cannot alter nor change the laws of his realm at his pleasure. . . . he can neither change Lawes without the consent of his subjects, nor yet charge them with strange impositions against their wils’.
Of course, it took the upheavals of the 17th century, culminating in the Glorious Revolution of 1688, for it to be finally established that ‘levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament . . . is illegal’. Just as it takes clear words to empower the executive to interfere with fundamental rights, it takes clear words to empower the executive to levy charges. As every Law student knows, a power to regulate the sale of milk by issuing licences to buy it does not include a power to charge the purchaser 2d a gallon for the privilege.
Indeed, levying taxes and authorising the government to spend the proceeds is the one area of control of the economy over which Parliament does have some oversight. As Tony Prosser has shown, there are many other ways in which the economy is regulated these days, through the money supply, interest rates, various regulatory bodies, government procurement, and so on, over which Parliament has little or no control.20 Indeed, it may be that in today’s world, Parliamentary control of taxation and expenditure is less than wholly effective. But at least the principle first established in Magna Carta is maintained.
The Glorious Revolution also finally established that the King could not suspend or dispense with the law, and that only the King in Parliament could make new laws. That does, of course, mean that Parliament can take away our rights, or limit our freedoms, as the court acknowledged in Entick v Carrington. A striking example is the Security Service Act 1996, which gave the Security Service the new function of supporting the police in the prevention and detection of crime.
The Secretary of State was thus empowered to grant warrants, on the application of the Security Service, authorising them to enter private property, to interfere with it, and to bug it, in pursuit of this new function, all without judicial control. Hence the Security Service, acting in a policing role, has greater powers than the police do. This was in the days when Law Lords were Members of the House of Lords and entitled to take part in its Parliamentary business. Lord Browne Wilkinson was scathing:
‘What has never happened in police matters hitherto, since Entick v Carrington, is proposed in this Bill almost by accident; that is to say, an executive warrant enabling entry into English property; the burgling and bugging of it, under executive warrant, which is the very thing which has been fought by the law and all interested in liberty, for many hundreds of years.’
That is why, in most other countries in the world, there is a superior law, a Constitution or a Bill or Charter of Rights, which limits the powers of the legislature to pass laws which infringe such fundamental rights. Indeed, at the Commonwealth Magistrates and Judges conference recently, after I had explained that the Human Rights Act did not allow the courts to strike down Acts of Parliament which were incompatible with fundamental rights, a delegate clearly could not understand how Parliament could be permitted to pass an Act which was unconstitutional. But that has always been the position and I doubt very much whether most of us, brought up on the doctrine that ‘Parliament can make or unmake any law’, would want it any different.
However, we are beginning to recognise that not all Acts of Parliament are equal. Some of them may have a special constitutional status, which means that they cannot be impliedly repealed or amended by a later Act of Parliament. Once again, clear words would be needed to bring about such a constitutional change. Thus, in the ‘Metric Martyrs’ case, section 1 of the Weights and Measures Act 1985, an ordinary Act of Parliament, which permitted the continued use of imperial weights and measures, could not be taken to have impliedly repealed section 2(2) of the European Communities Act 1972, which recognised the supremacy of community law by empowering the use of subordinate legislation to comply with a European Directive requiring the primary use of metric measures.23 Among the ‘constitutional’ statutes listed was Magna Carta. On the other hand, the European Communities Act could not be taken to have authorised the courts to disobey article 9 of the Bill of Rights, that ‘freedom of speech and debate or proceedings in Parliament ought not to be impeached or called in question in any court or place out of Parliament’, so as to permit the court to investigate whether the Parliamentary scrutiny to be given to the bills authorising HS2 was sufficient to comply with the Environmental Impact Directive. In both of those cases, Magna Carta was, of course, listed among the examples of such constitutional statutes. The reverse, however, is not so far the case: there is no such thing as an unconstitutional statute.
The sovereignty of Parliament should, of course, place a heavy burden on Parliament to legislate with great care when fundamental rights are at stake. In this country, we can place some reliance on what Dominic Grieve has called ‘an entirely distinctive national narrative, embodying the Common Law; its confirmation through Magna Carta and its numerous reissues in the Middle Ages, the outcome of the conflict of authority between King and Parliament in the 17th century, in the Petition of Right, the abolition of the Star Chamber and the prohibition of torture; habeas corpus and the Bill of Rights of 1689, Lord Mansfield’s ruling on slavery in Somerset’s case and the Commentaries of William Blackstone.’
He goes on to suggest that ‘This national narrative has been so powerful that it has acted as an almost mythic restraint on successive British governments trying to curb freedoms when tempted to do so by threats to public order or national security . . . ’ This brings me to the third great idea which we can trace back before Magna Carta, the idea which we now call the Rule of Law. In fact, as Lord Bingham has shown, that embraces several ideas. But its essence lies in two principles. The first is that everyone is subject to the law, the governors as well as the governed. Then, the King and his officers had to act within the limits of what the law allowed. Now, the government and all other public bodies have to act within the limits of what the law allows. It is the job of the higher courts to ensure that they do. For most of the time, this means that the court is acting as the servant of Parliament. Most public bodies, being creatures of statute, derive their powers from Acts of Parliament or subordinate legislation. The role of the court is, not to exercise those powers for them, but to ensure that they are exercised in accordance with the law, not outside the limits of what their powers allow, in a fair and proper manner and not without reason. Sometimes, of course, the executive’s power derives from other sources, most notably the royal prerogative. But since Magna Carta there have been limits to the royal prerogative and it is now the role of the higher courts to ensure that government stays within those limits.
In this connection, I cannot resist mentioning the case of the Chagos islanders, because it is a case in which Magna Carta itself might have made a difference. When, in the 1960s, the British decided to lease Diego Garcia, the largest island in the Chagos archipelago, to the United States as a military base, it was also decided to remove all the islanders. This was done with a ‘callous disregard’ for the islanders’ interests. A new colony was created and its Commissioner given power to make laws for the ‘peace, order and good government’ of the colony. This was done under the royal prerogative to legislate for the colonies by Order in Council without Parliamentary approval. The Commissioner used his power to ban anyone from entering or remaining on the islands without permission. Years later, in 2001, Mr Bancoult successfully challenged the Commissioner’s Order as outside his legislative powers. At first, the government accepted this.
But in 2004, for reasons that are still obscure and controversial, they changed their minds and decided to reinstate the ban. This time they did it, not by giving legislative power to the Commissioner, but by enacting a new Constitution by Order in Council which itself prohibited entry except in accordance with a new Immigration Order. Mr Bancoult brought a second set of proceedings to quash the new Orders. He succeeded in the High Court and Court of Appeal, but failed in the House of Lords, by a majority of three to two.
Among the many arguments deployed on behalf of the islanders was one based on chapter 29 of Magna Carta: ‘No freeman shall be . . . exiled . . . but by the lawful judgment of his peers or by the law of the land’. It was accepted that Parliament might pass a law exiling a person from his homeland, but it was argued that an Order in Council in the exercise of the royal prerogative could not do so. Three of the Law Lords disposed of this argument by holding that the Orders were ‘the law of the land’ for the purpose of chapter 29. Two of the Law Lords held that there had never been a prerogative power to exile a population from its homeland. Magna Carta, and the later development of its principles by Blackstone and Lord Mansfield, lay at the heart of their reasoning.
But there is another aspect to the rule of law, which can also be derived from Magna Carta’s most famous guarantee: ‘we will sell to no man, we will not deny or defer to any man right or justice’. In modern terms, everyone has the right to access to justice: access to justice to defend themselves against the accusation that they have committed a criminal offence or should be subjected to some other form of penalty; access to justice to defend themselves against a civil claim; access to justice to assert a civil claim or to vindicate a right. It is a core function of the modern state to provide such access. Indeed, it has been argued that access to justice is even more important than access to other public services:
‘Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc, so it should protect them when legal difficulties arise. Indeed the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law.’
Those words were written in the context of access to lawyers but access to justice is even more fundamental than that. In a speech to the Commonwealth Magistrates and Judges’ Association, the Lord Chief Justice has recently commented that government and Parliament may not fully understand how important access to justice is to the maintenance of the rule of law. It is therefore the role of leadership judges to engage with them both, and with the public, to try and explain. So here is my simple attempt to do so.
The importance of affording a fair trial to persons accused of crime is not always obvious. All too often, our trial processes seem to the great British public to result in the acquittal of the guilty. We do, of course, have an obligation to make such processes fair to the alleged victims as well as to the alleged perpetrators. But, as it seems to me, a large part of the importance of a fair criminal process is to reassure the law-abiding: if we obey the law, we shall not be punished. If there is a risk of arbitrary and unjust punishment, what incentive is there to obey the law? In this connection, therefore, it is important to scrutinise any incentive to persons accused of crime to admit their guilt to police officers, or to plead guilty in court, in order to ensure that they do not place improper or unfair pressure on the innocent. An example is the recently introduced criminal court charge, levied on those who are convicted after having pleaded not guilty. I make no comment on whether this is, or is not, improper or unfair. My point is only that such pressures to plead guilty have always been rightly treated with suspicion in our common law world.
The importance of ensuring that people who have civil claims can also have access to justice to enforce or vindicate them is also not always obvious. Sometimes we in the justice system have only ourselves to blame. In my own world of family law, we have been so keen to encourage separating parents or spouses to settle things between themselves, that we may have neglected those who cannot, or cannot reasonably be expected to, do so. It is all very well to promote family mediation (as President of National Family Mediation I am naturally a supporter). Fighting in court is financially and emotionally exhausting and unlikely to promote the constructive relationships which are vital to successful parenting in future. But mediation can only work fairly and properly if it is backed up by the knowledge on both sides that a fair and just system of adjudication will be available if it fails. Otherwise the bully will always win. Where the family justice system led, the civil justice system soon followed. Fighting in court is to be avoided if at all possible. Alternative dispute resolution processes are to be encouraged. Once again, however, these can only work fairly and properly if they are backed up by the knowledge on both sides that a system of adjudication will be available if they fail. Not only that, people and businesses need to know, on the one hand, that they will be able to enforce their debts and their civil claims if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which keeps the world of business and commerce going. It is that knowledge which makes every-day economic and social relations possible. Once again, therefore, steps which look as if they may impede such access have to be scrutinised with care.
For example, we can argue about whether or not it should be unlawful to sack a woman just because she is pregnant. But for as long as we have such a law, she has to have a realistic possibility of bringing a claim if the law is broken. It cannot be right effectively to subvert such a law by making it practically impossible to assert the rights which it gives her. Once again, I make no comment on whether the levels at which court and tribunal fees are now set is an unfair deterrent to those who quite properly seek access to justice to vindicate their claims. The point is that, if Magna Carta is to mean anything today, right or justice must not be unfairly denied to anyone.
I cannot resist adding that, as well as being the 800th anniversary of Magna Carta, the 250th anniversary of Entick v Carrington, and the 750th anniversary of the de Montfort Parliament, this is also the 15th anniversary of the coming into force of the Human Rights Act, which has reinforced the great ideas of Magna Carta in many ways, and we all hope and expect that those great ideas will be at the forefront of any proposals for reform. So, I ask again, did that brave Hungarian peasant girl die in vain? I think not. The pledges which she made King John ‘sign’ remain the basic principles of our Constitution today. But we all have to be alert to maintain those principles in the face of the very different risks and complexities of the modern world.
July 29, 2015
John Major: Inaugural Edward Heath Lecture
‘Inaugural Edward Heath Lecture’, The Guildhall, Salisbury. Wednesday 17th June 2015. The Rt Hon. Sir John Major KG CH, Speaker.
It is a great pleasure to be here this evening in this magnificent Guildhall, to deliver the first Edward Heath Lecture.
Nearby, in the Cathedral Close in Salisbury, is Arundells; the first home that Ted Heath could truly call his own. Ted spent his last two decades living there and it was evident to everyone who knew him how profoundly he loved the house, with its subtle architectural balance, tranquil gardens and stunning view of our greatest Gothic cathedral. It appealed to the inner artist in Ted – and it never lost that appeal.
Next year, Ted would have been a hundred years old. I think he would have been delighted that funds are to be raised – not just for the historic delights of Arundells – but for discussion of international affairs, education and the arts. Ted knew that a rounded life extended far beyond domestic politics, and his own life reflected that understanding: it is a privilege to deliver this inaugural Lecture and Ted would, I think, have approved of the subject.
But – first – if one delivers a Memorial Lecture to Edward Heath, one cannot ignore his great achievement of taking Britain into Europe. This is not the occasion for detailed arguments about the merits and de merits of the present-day European Union: that must await a later occasion when I, for one, will argue that we are far better off working with our partners than in splendid isolation.
But Ted was born during a war that began in Europe, and served through a later one, both of which engulfed the world. It was imprinted on his mind – and that of his contemporaries – that working with our European neighbours would prevent conflict with them: in this, Ted was surely right. It was a view he held to – sometimes in the face of vituperative criticism – for the rest of his life.
And he saw, too, that only a Europe that worked together could ever look the giants of America and China in the eye – as equals. In this, too, he was right.
Our history might cry out that we can survive alone – and I have no doubt we can: but logic suggests we are more likely to thrive in partnership. This, too, Ted understood.
* * * * *
My interest in Magna Carta – the Great Charter – goes back a long way.
As a boy, of course, I was taught about it in that long-ago time when learning about our history was thought to be essential to an education.
Many years later, I came across Magna Carta in a much more personal way. I was in my early thirties, and a young Banker with Standard Chartered. It was 1975 and – because the Bank had interests in California – they wished to contribute in some way to the American bicentenary celebrations the following year.
The then Chairman, Tony Barber – Chancellor of the Exchequer in Ted Heath’s Government – invited me into his inner sanctum one evening, poured a generous drink, and began tossing around ideas of what we might do. Out of that discussion came the notion of borrowing a copy of Magna Carta to display in our branches across California. Whether that was my idea, or the Chairman’s, is lost in the mists of time – or in the afterglow of his generous hospitality – but I was duly tasked with exploring possibilities.
I soon learned there were four remaining copies of Magna Carta: two at the British Library, and one at both Salisbury and Lincoln Cathedrals. The Chairman decided to approach the Dean of Lincoln, the Very Reverend Oliver Twistleton-Wykeham-Fiennes and, upon doing so, we learned that God and Mammon had a far closer relationship than we had imagined: when he heard of the Bank’s interest, the Dean welcomed the money changers into the Temple – or, at any rate, the Cathedral.
Although the Dean was fiercely protective of the Charter, after much to-ing and fro-ing he finally agreed that Lincoln’s Magna Carta could be flown to California – but with conditions. The precious document was to be housed in a fire-proof, water-proof, bomb-proof, bullet-proof, humidity-controlled exhibition box costing £12,000 – over £100,000 in today’s money – and transported in a Vulcan aircraft from RAF Waddington. A second Vulcan was to follow close behind so that – if the first one crashed – we would know where the Magna Carta lay. Thus – even if it rested beneath the waves for decades – the Charter would still be intact when it was rediscovered.
There were some memorable vignettes.
I was told – and I do wish I had seen it – that the box was attacked with flame throwers, flood water and rifle fire to test its protective qualities. As for insurance – no-one was sure of its value – for how can you put a price on such a document?
The Dean knew how. He looked around the Cathedral, at its historic majesty, and speculated aloud about how much it cost to protect and repair its ancient fabric.
We insured Magna Carta for that sum – in the millions – which led Tony Barber to ponder whether the Dean and Chapter might actually be praying secretly for us to lose it.
Inevitably, there were hiccups. The Dean was set to fly to California, and the Bank’s travel section duly booked first-class tickets for Messrs Twistleton, Wykeham, and Fiennes. Fortunately, this was noticed ….
Although I was originally due to accompany the Magna Carta to California, the Chairman decided he needed me to travel with him instead – to an IMF Conference in Manila. So I parted company with the project. It was, however, a huge success, and the Great Charter was returned safely to Lincoln – together with Twistleton, Wykeham and Fiennes ….
Magna Carta, although undeniably English at birth, has become an essential component in the laws of English-speaking nations around the world. In the UK, it underpins our system of law, and was an inspiration to the Chartists and the Suffragettes as they sought the right to vote. In America, its influence is evident in the Constitution, the Declaration of Independence and the Bill of Rights. So it is instructive to examine its origins.
In 1215, the Plantagenet King John was on the throne. His father, Henry II – arguably our greatest King – inherited a Kingdom exhausted by war and anarchy, and initiated a judicial system that evolved into our common law. John’s elder brother, Richard the Lionheart, was a leader of the crusades, and is immortalised outside the House of Lords on horseback, with sword raised aloft. Richard is the quintessential English hero, which is odd, since he was French and spoke little or no English. He spent less than one year of his reign in the country he ruled for ten – but a ransom to save him from prison did nearly bankrupt it.
I digress for a moment to note that St George – he who slayed the dragons and freed maidens – was a Syrian. He, too, spoke no English – and never visited our country. Nor did he slay dragons or free maidens. Of such virtues are English heroes made!
Let me revert to Magna Carta.
On his brother Richard’s death, John became King. Contemporary chronicles pre-date history’s verdict that he was a very bad King indeed. One wrote that “hell itself is defiled by the foulness of John.” Others were less kind. Many expressed sentiments that made today’s tabloid press seem positively tame.
By 1215, John had been on the throne for 16 years. Vicious, lecherous, arbitrary in dispensing justice, untruthful and greedy, he had done little to endear himself to his subjects.
In particular, John’s relationship with his unruly Barons had deteriorated to the point of civil war. This was no accident. He had over-taxed them to fund a war with France that he lost ignominiously. He had a propensity for – I put this delicately – the wives and daughters of the Barons. Angry and rebellious, the Barons demanded the restoration of “ancient liberties” – as enshrined in a Charter of Henry I, one hundred years earlier. But John had no intention of appeasing the Barons, and when he met them in early 1215, he rejected their appeals, and demanded even greater allegiance.
It was a foolhardy gesture and the Barons reacted with force. In May 1215, they captured London and compelled John to meet them again – this time at Runnymede, midway between the King’s army at Windsor and the Barons’ men at Staines. After several meetings – and what today we would call “a free and frank exchange of views”– an embryo Charter was drawn up: “The Articles of the Barons”.
On 15 June a binding agreement was reached: the King would issue what became known as Magna Carta and, in return, the Barons would swear fealty to him. Magna Carta was not signed – there is no evidence John could write – but the 4,000 word document, written on sheepskin parchment in Medieval Latin, was duly stamped with the King’s Seal. Copies were made by monks in the Royal Chancellery, and despatched for public proclamation to towns and cities across England. Magna Carta was born.
What did the Great Charter say? The first thing to understand is that it was a contemporary document drafted for the wellbeing of the Barons. It was time, common practice, subsequent events and re-interpretation of the text by great lawyers that elevated the Charter to its unique status.
The original Charter had 63 clauses, or chapters – many of them trivial. But the two great Chapters were Numbers 39 and 40. They are central to the enduring fame and eternal relevance of Magna Carta today.
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
In other words – the Barons told the King – don’t think you can act arbitrarily against us.
“To no-one will we sell, to no-one deny or delay right or justice.”
This is a fundamental principle of our law. No-one can be sure who drafted it, but it seems likely that the guiding hand may have been Stephen Langton, the Archbishop of Canterbury. If so, this would have infuriated the King since – in modern parlance, the Archbishop and the King had “previous”.
A decade earlier, when Archbishop Hubert Walter had died, King John had nominated his own candidate, only to find him opposed by a faction in the Church. The Pope, Innocent III, intervened and Langton was consecrated Archbishop without John’s approval. It did not make for a good relationship.
John accepted the Charter under duress and, no doubt, with ill grace. But within weeks, he saw his opportunity to destroy it.
Chapter 61 proposed a Committee of twenty five Barons to enforce Magna Carta, and hold the King to his word. This was anathema to an hereditary Monarch who believed he was above the law. More important, it was anathema to an autocratic Pope who saw here a principle that could threaten his own authority.
When John appealed to him, Pope Innocent quashed Magna Carta in a Papal Bull. It was, he announced, “unjust, shameful – and illegal”. In the Catholic England of 1215, the Pope’s writ was all powerful . But while John rejoiced, the Barons prepared for civil war.
This time, they were serious. They no longer sought concessions. Their plan was to depose John and offer the Crown to Prince Louis of France who – while John was fighting the Barons in the North – had invaded with 7,000 troops . A bloody conflict seemed inevitable when John, at last, did something that would save Magna Carta for posterity: he died at Newark Castle.
John was succeeded by his infant son, nine-year-old Henry, and William Marshall, Earl of Pembroke, became Regent. William Marshall was a genuine hero of the age – and pre-eminent in reputation among the Barons. He re-issued Magna Carta in Henry’s name – but without the contentious Chapter 61 that had so upset the Pope.
Most Barons accepted this – and those that did not were swiftly defeated at the Battle of Lincoln Fair. Louis fled to France, and Magna Carta became more deeply embedded in both the law and folklore of the English.
In 1225, when Henry III was old enough to assume power without a Regent, Magna Carta was re-issued again – in the form we recognise today and in an abbreviated 37 Chapters – but with one key difference.
This definitive text had Henry III’s “full and free consent”. Its acceptance placed the King himself under the law.
It was a good principle, but could only become reality if there were a body in place to enforce it and, three decades later, an embryo Parliament lifted the veil on what that body would ultimately be. However, true Parliamentary control of the Monarchy was still far off.
“Words mean”, said Humpty Dumpty to Alice, “just what I choose them to mean”. That is relevant to Magna Carta because it was the interpretation of the Charter that made it so powerful. The “free men” in King John’s Charter were freeholders of land, not the free and independent men and women of later ages.
As the late Law Lord, Tom Bingham put it: “the significance of Magna Carta lay, not only in what it actually said, but in what later generations claimed and believed it had said.”
Throughout the 14th and 16th Centuries, Magna Carta slumbered. Henry VIII ignored it completely when he made himself Head of the English Church.
But it was re-awoken in the early 17th Century, when Stuart Kings clashed with Parliament. When James VI of Scotland succeeded Queen Elizabeth I as James I of England, he held the view that “Monarchy is the supremest thing on earth … Kings exercise a manner of divine power on Earth”.
This was neither the first – nor the last – time that a Scottish leader expressed views that were alien to the English, and the great lawyer, Sir Edward Coke, was soon in conflict with James – who dismissed him as a Law Officer. Undeterred, Coke entered Parliament and, in 1628, infuriated James’s successor, Charles I, by invoking Magna Carta to bridle the power of the King. “Magna Carta owns no Sovereign” Coke argued, in provocatively chosen language, as he urged the supremacy of Common Law over the Royal Prerogative.
The stage was set for political confrontation. For some years, Charles attempted to rule without Parliament, but ran out of money. When he recalled Parliament – to raise funds to fight the Scots – Parliament refused to comply until the King reaffirmed Magna Carta and the Petition of Right. The stand-off deteriorated into a Civil War, begun by Charles but won by the Parliamentary Forces under Cromwell. It was followed by the trial and execution of the King.
Nearly forty years later, another Stuart King, James II, was deposed in the bloodless coup of the Glorious Revolution, and William and Mary of Orange were offered the throne – but with conditions. They were required to affirm a Bill of Rights that granted far greater power to Parliament.
This was the effective beginning of a constitutional Monarchy, and the end of absolute rule. From that moment, Parliament was supreme. And the justification cited was Magna Carta. It would be nice to believe that Stephen Langton foresaw this triumph 470 years earlier – but, sadly, I doubt it.
Although Magna Carta was undeniably English by birth, its principles travelled the length and breadth of the English-speaking world – to India, Canada, New Zealand, Australia – and, of course, that great democracy – the United States.
When the first Colony was established in Virginia in 1606, James I granted the new settlers the same rights as were available in England, and the colonists embraced these liberties in their own domestic laws. In 1638, Maryland passed a Bill to recognise Magna Carta as part of the law of the Province.
Three years later, Massachusetts framed their “Bill of Liberties” in “resemblance to Magna Carta”. In 1668, the Carolinas legislated to regulate the grants of land in a Bill they characterised as “a species of Magna Carta”.
Thus, over a hundred years before the Declaration of Independence (1776), the colonial Legislatures had firmly embedded the principles of Magna Carta into American law.
These principles were enhanced after Independence. The Federal Constitution of 1789 embodied declarations on the rights of men that were variants of English law. As Lord Bryce observed a hundred years later: “there is little in the Constitution that is absolutely new. There is much that is as old as Magna Carta.” That holds true today.
As you enter the bronze doors of the US Supreme Court, you will see a depiction of King John signing Magna Carta; and, in the courtroom itself, a marble frieze commemorating the great lawmakers, where John is shown hugging Magna Carta, in the company of Napoleon and Justinian.
The men who drafted the US Bill of Rights deliberately echoed the language of Magna Carta. In 2003, Sandra Day O’Connor, the first woman ever to serve as a US Supreme Court Justice, paid tribute to its lasting influence – noting that:
“In the last forty years the Court has cited Magna Carta in more than fifty written opinions. It has looked to concepts embodied in Magna Carta in important decisions that concern, for example, the prohibition of cruel and unusual punishment, the requirement that trial by jury be afforded in state criminal prosecutions, and the access of indigents to review of criminal convictions.”
* * * * *
How relevant is the Magna Carta today? It is rarely cited in legal action, although its derived law remains potent. And there are areas where its absence is striking and its writ has not run: extraordinary rendition, for example, and detention without trial in Guantanamo Bay. American courts ruled that normal circumstances could not apply in wartime – a contentious decision that many would question – myself included. Whatever crimes these prisoners may have committed, they deserve to be brought to trial and, if found guilty, punished: but to be imprisoned without trial cannot be acceptable.
Many, too, might be concerned at the modern level of surveillance which has grown dramatically to counter terrorist threats unforeseen by earlier generations. Much is justified by legitimate security concerns, but it is a trend that Parliaments should watch with care.
But I would argue that the Charter’s impact today goes far beyond the law. It can be seen in the attitudes and expectations of the English-speaking nations.
This evening, my focus is the UK and the US. As children of Magna Carta, we instinctively dislike over-mighty power – not least in our Governments. I lost an election in 1997 for many reasons, but one – repeatedly cited – is that we had been in Government for too long and the UK wasn’t a one-Party State. I agree with the sentiment – although I would have preferred for its implementation to have been deferred. Our two nations are suspicious of monopoly power. We have an affinity for the under-dog, for the plucky loser. Magna Carta is in our DNA – it is who we are.
And our expectations show a symbiotic relationship with the Charter. We require and expect our Laws to be fair. Our Courts to be impartial. We take for granted that we can mock and criticise the mightiest in the land without fear of reprisal. We believe we have ancient rights – freedom of speech, the right to own and pass on our assets, protection against the State. We assume all this as an ancient right, whilst acknowledging that such liberties are still not available in many other parts of the world.
Alexander the Great believed that Asians became slaves because they could not pronounce the word “No”. But we can and do: to Monarchs; to Presidents; to Governments; to Jacks-in-Office; to hostile armies – and so have we throughout our history.
Of course, the UK and US are not identical. Let me speak for a moment of my own country. As a nation we British are understated – until roused by threats or injustice – and we rarely speak of freedom, perhaps because we take it for granted.
Maybe we should speak of it more. Freedom – liberty – is essential to the individual if he is not to be crushed. It is enshrined in our every attitude. We know that – without the rule of law and free speech –despotism can reign. But, even in our own country which is, I believe, as free as any in the world, freedom is not universal. There is no freedom – no liberty of action – in poverty. There is little freedom in unemployment. They are both a blot on a free society and, if we do not seek to eliminate them, they become a blot on our conscience too.
And, on a lower level, we should beware lest independence and freedom is eaten away by pettifogging rules and too much control: we should look critically at regulation if we wish to ensure a free nation does not live in a Nanny State.
Are these sentiments due to Magna Carta? Or did Magna Carta come about because this is the unshakeable conviction of our people? We will never know the answer. But what I do know is that we should be proud we gave our laws and our concept of freedom to a large part of the world – and prouder still that they have adopted it.
These days I travel widely to every corner of the world. Many might be surprised at the respect and affection there is for our country based on our language, our democracy, our system of law and the perception that we are a fair and tolerant nation.
There is one current controversy which has faint echoes of the principal dispute over Magna Carta. That dispute – as I have set out – was between absolute Monarchy and Parliamentary supremacy. Today’s more minor dispute is between British Law and the rulings of the ECHR. It is a much misunderstood issue.
There is a strand of opinion in the UK that disowns logic and abandons consensus once the words “European Union” are mentioned: it is as though a red mist has descended, robbing intelligent minds of the ancient British genius for compromise.
So let me make clear that the ECHR has absolutely nothing to do with the European Union. This Court was established by a Convention on Human Rights, agreed in 1950, the drafting of which was guided by a Conservative lawyer and politician. Yet, I think it fair to say that, over recent years, the rulings of this Court have widened to an extent that has often upset Parliament, politicians, press and public in equal measure.
The Convention was designed to protect civil and political liberties, at a time when wartime violations were fresh in the memory and Communism – with its disregard for individual freedom – was a growing threat across much of Europe. It was signed by 47 European nations and reflected the terms of the Universal Declaration of Human Rights – itself described by Eleanor Roosevelt as a “Magna Carta for all mankind”.
The Convention was drafted in broad terms to cover such issues as the right to life and liberty; to fair trial; to freedom of expression; to the end of torture – and many rights long familiar to our own way of life. It was incorporated into British Law in the Human Rights Act agreed by Parliament in 1998.
The Government wishes to replace the Human Rights Act with a “British Bill of Rights” that would replicate all the safeguards of the Convention, but leave its interpretation in the hands of British Courts. As a result, a clamour has arisen that the intention is to infringe existing human rights. If I thought that were so, I would be a strong opponent of the change. But it is not.
Human rights and liberties were protected in this country long before the Human Rights Act, and I have no doubt that will remain the position when the legislation is updated. The land that gave us Magna Carta will not turn its back on fundamental liberties. And the land that gave us a democratic Parliament is surely right to ensure that the will of Parliament is not misinterpreted.
The ECHR is a symbol; a potent symbol of the post-war settlement in Europe. In the world of politics, such symbols matter and we respect their power and significance. I expect consultation and compromise to settle this issue.
Let me give the final word to an Englishman, among the greatest we have known, born of an American mother.
Sir Winston Churchill wrote of Magna Carta:
“The underlying idea of the sovereignty of law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject, it is to this doctrine that appeal has again and again been made, and never, as yet, without success.”
Ted Heath began his career as a Whip in Churchill’s last Government. He would have agreed with Churchill’s analysis. He understood that Magna Carta framed our law, our Parliament, our history and our nature.
For that, Britain, America and much of the world can all be grateful.