November 12, 2016
800th anniversary of Bristol Magna Carta
Jeff Lovell is Bristol’s first citizen: its Lord Mayor.[*1] On Saturday 12th November, the Lord Mayor and Lady Mayoress will be at Bristol’s St James’ Priory for the Bristol800 concert to mark that day’s 800th anniversary of the Bristol Magna Carta. Present, too, will be Mrs Josette Lebrat – French Honorary Consul for Bristol and the South West of England.[*2] The Bristol Magna Carta was the re-birth of the ‘Great Charter’. It was intended to coax England’s rebel barons to side with England’s Boy King, King Henry the Third, against his rival: the future King Louis the Seventh of France, whose forces, by then, controlled the eastern half of England.[*3] Mrs Josette Lebrat will be at the concert in her official capacity on this significant anniversary for England and France.
Magna Carta is seen, by many, as a major step in the history of human rights. Hence the view that the Universal Declaration of Human Rights of 1948 was a “Magna Carta for All Mankind”.[*4] All proceeds from the Bristol800 Magna Carta concert go to Freedom from Torture. This UK charity provides therapeutic and clinical services to survivors of torture who arrive in the UK, as well as striving to protect and promote their rights.
On Saturday 12th November, choral works from the time of the 1215 and 1216 Magna Cartas and a few pieces composed since which relate to the Magna Carta will be sung, beautifully, by the acclaimed Chandos Singers. Historical insights will be provided by UWE History professor Peter Fleming. The venue –the oldest building in Bristol– is linked to the 1216 events and is next to Bristol bus station.
The world famous Magna Carta –agreed to by King John in June 1215 at Runnymede (near Windsor)– was declared ‘null and void of all validity for ever’ by the then Pope, at King John’s request, soon after Runnymede.[See *3]
From that moment: Magna Carta was dead! What followed? —
* a French invasion, at the request of England’s rebel barons;
* the death of King John on (it is thought) 18th October 1216;[*5]
* the coronation of his son: the 9-year old King Henry III at what is now Gloucester Cathedral on 28th October 1216;[*6]
* Magna Carta was revised and reissued, in Bristol, on 12th November 1216.[*7]
Only one copy of the Bristol Magna Carta is known to survive.[*8]
The 12th November concert is part of Bristol800 and of the Bristol 800 Universities Showcase weekend. Bristol800 is a year-long cultural and heritage partnership to mark the 800th anniversary of Bristol’s Mayorality and of the Bristol Magna Carta.[*9] Another in a series of anniversaries marked by Bristol800 is the 40th anniversary of the first commercial flight by Concorde – a major Anglo-French project.[*10]
Malcolm Hill, conductor of the Chandos Singers, said today: “Choral works performed during 1200-1220 and a few pieces composed since which relate both to the original Magna Carta in 1215 under King John, the proclamation at St. Paul’s Cathedral of the future Louis VIII as King of England, and to the reissue in Bristol under the boy-king Henry III in 1216 will be sung.”[*11]
Professor Peter Fleming added: “As a historian of medieval Bristol it’s great to be involved with this very worthwhile effort. In between the excellent renditions I’ll be saying a little about these historic documents, what they meant to Bristol, and what they continue to mean to our contemporary world.”
The organisers offer free tickets for carers accompanying ticket buyers: get in touch to arrange this. Seating is unreserved and on chairs, pews and benches. Some have restricted views, so please arrive early to choose your seat. Doors open 2.30pm.
[*1]: Jeff Lovell is Bristol’s first citizen: its Lord Mayor. See: http://www.northsomersettimes.co.uk/news/war_veteran_96_given_french_service_medal_for_d_day_efforts_1_4758574
[*2]: Mrs Josette Lebrat, French Honorary Consul for Bristol & the South West of England. See: https://www.embassypages.com/missions/embassy4440/
and ‘North Somerset Times': “War veteran, 96, given French service medal for D-Day efforts”, 2nd November 2016: http://www.northsomersettimes.co.uk/news/war_veteran_96_given_french_service_medal_for_d_day_efforts_1_4758574
[*3]: “the future King Louis the Seventh of France, whose forces, by then, controlled the eastern half of England.” The Runnymede Magna Carta of June 1215 was “effectively dead” by late August 1215, when – at King John’s request – the then Pope issued a document (known as a papal bull) declaring Magna Carta ‘null and void of all validity for ever’. In September 1215, civil war broke out between King John and his barons. The King raised an army of mercenaries to fight his cause, while the barons renounced their allegiance to him, and invited Prince Louis (1187-1226), son of the King of France, to accept the English crown. Louis invaded England in 1216, and England was still at war when John died of dysentery on the night of 18th October 1216. Magna Carta gained new life in the early years of the reign of the next king, Henry III. Henry was just nine years old when he succeeded to the throne, and in November 1216 in Bristol a revised version of Magna Carta was issued in his name, in order to regain the support of the rebel barons. Another version of Magna Carta was granted in the following year, after the French army had been expelled from England. Adapted from British Library account: https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction
[*4]: “A Magna Carta for All Mankind”: https://www2.gwu.edu/~erpapers/maps/Europe1948final.html
[*5]: ‘Foul as it is, hell itself is made fouler by the presence of King John.’ On 18th October 2016, The National Archives (London) held a free talk on the life and reign of King John, who died 800 years earlier. Professor David Carpenter, Professor Stephen Church and Dr Marc Morris discussed the man, his life, his world and his reputation, with plenty of opportunities for questions from the audience. For more information, visit: http://blog.nationalarchives.gov.uk/blog/life-death-king-john/
Media enquiries to: [email protected] or 020 8392 5277
[*6]: The 9-year old King Henry III was crowned at Gloucester on 28th October 1216. The 800th anniversary was marked by ‘What happened at Henry III’s Coronation at Gloucester in 1216?’ – a talk on 28th October 2016 at Gloucester Cathedral. That talk was part of Gloucester Cathedral’s King Henry III events: http://www.gloucestercathedral.org.uk/whats-on/lectures/lectures-2911.php
Further enquiries to the Cathedral’s development officer, Laura Neale: T: 01452 874965; e: [email protected] .
[*7]: “On the death of King John in 1216, the minority government of his son, Henry III (r. 1216–72), executed a complete change of policy and issued a new version of Magna Carta. The aim was to tempt supporters of Prince Louis back to Henry’s side. Only one original of the 1216 charter survives, in the archives of Durham Cathedral. Shown here is a contemporary copy, which probably came into Louis’s possession and left England with him in 1217; hence its descent in the French royal archives. There is no evidence that Louis responded by granting a charter of his own. The new version of the charter was issued in Henry’s name at Bristol on 12 November 1216, having been sealed by Guala (1150-1227), the papal legate, and the regent, William Marshal, Earl of Pembroke (1147-1219). It omitted the security clause and other controversial features of the 1215 charter, but preserved its spirit and much of its letter.”: https://www.bl.uk/collection-items/magna-carta-1216
[*8]: The only known copy of the November 1216 Bristol Magna Carta is at Durham Cathedral. It contains 42 clauses (as compared to the 61 of the 1215 issue). Media enquiries to Ruth Robson, Head of Marketing & Events, Durham Cathedral. Tel: 0191 386 4266 See also: https://www.durhamcathedral.co.uk/magna-carta/cathedral-collections
[*9]: “Bristol800 is a year-long cultural and heritage partnership to mark the 800th anniversary of Bristol’s Mayorality and of the Bristol Magna Carta”. See: http://www.ideasfestival.co.uk/wp-content/uploads/2015/11/BFOI-Bristol-800-Cultural-Weekenders-Brochure-24pp-A5-WEB.pdf
[*10]: Another anniversary marked by Bristol800 is the 40th anniversary of Concorde’s first commercial flight: http://www.independent.co.uk/student/UWE/from-warplanes-to-concorde-how-music-is-telling-aviation-history-a7384521.html?amp
[*11]: “the proclamation at St. Paul’s Cathedral of the future Louis VIII as King of England”: See the St Paul’s Cathedral website (published: June 2015): https://www.stpauls.co.uk/news-press/latest-news/st-pauls-in-the-time-of-magna-carta-a-place-staunchly-opposed-to-king-john
August 3, 2016
Emancipation and Magna Carta
Trinidad & Tobago Guardian, Sunday 31st July, 2016.
By Dr Hamid Ghany, University of the West Indies (Chair of Magna Carta 800th Caribbean Committee)
Click here to read the original article.
As several Commonwealth Caribbean countries celebrate Emancipation Day tomorrow, it is important to locate the significance of the emotions felt on such an occasion, especially in relation to the issue of human rights.
In the British West Indies there was a fundamental dichotomy between the values espoused by the 1215 Magna Carta that was subsequently revised several times, and the construction of slave society. Magna Carta has been celebrated as the foundation stone of many constitutional systems and human rights matrices in a variety of countries. However, in the West Indies, it is apparent that the principles of Magna Carta were not prominent in the history of the region until the preparation of independence constitutions.
The fundamental challenge lay in the failure of British settlers in the British West Indies to apply the principles of Magna Carta to all people in the colonies that were settled, conquered or ceded in the name of the British Crown. Primarily, the laws that were devised to facilitate slavery and the slave trade in the British West Indies regarded African slaves as property and not as people thereby contravening the core principles of Magna Carta.
The attitude of the British imperial courts towards slaves demonstrated the diversion from Magna Carta in the West Indies.
The best example of the racial superiority factor in the approach of British colonial administrators is captured in the following excerpt from the Report by Major E F L Wood who toured the West Indies and British Guiana in 1921-22:
“The whole history of the African population of the West Indies inevitably drives them towards representative institutions fashioned after the British model. Transplanted by the slave trade or other circumstances to foreign soil, losing in the process their social system, language and traditions, and with the exception of some relics of obeah, whatever religion they may have had, they owe everything that they have now, and all that they are, to the British race that first enslaved them, and subsequently to its honour restored to them their freedom. Small wonder if they look for political growth to the only source and pattern that they know, and aspire to share in what has been the peculiarly British gift of representative institutions.”
[Report by the Hon Major E F L Wood, MP (Parliamentary Under Secretary of State for the Colonies) on his visit to the West Indies and British Guiana, December 1921-February 1922, Cmnd. 1679 (1922), p 6].
In framing colonial policy for the British West Indies, this quote from Major Wood (who later became Lord Halifax, the Second World War Foreign Secretary in Winston Churchill’s War Cabinet) highlights the mindset of racial superiority as the basis for engagement.
There were two legal cases that held great significance for the way in which slaves were to be treated during the pre-emancipation period.
The first was the matter of Somerset v Stewart [(1772) 98 ER 499] which established that slavery could not be practiced in England, but left open the issue of whether it could be practiced in other parts of the British Empire by virtue of the ambiguity of the judgment of Lord Mansfield in this regard.
The second was the matter of Gregson v Gilbert [(1783) 3 Doug KB 232] otherwise known as the Zong massacre. In this case an insurance claim involving a slave ship called the Zong was admitted. The insurance claim was for recovery of losses by the shipowners for a loss of cargo when 132 slaves were thrown overboard in order to retain supplies of food and water for those on board. This horrific act was upheld by Lord Mansfield and the owners were later compensated for the loss of the slaves.
The philosophy of regarding African slaves as property and not as people was a core imperial legal philosophy of the pre-emancipation era as highlighted by these two cases.
Even though Emancipation Day would come on August 1, 1834, it is really the advent of human rights in the independence constitutions from 1962 onwards that secure equality and justice for all in the society. Both the Canadian Bill of Rights 1960, in the case of T&T, and the European Convention on Human Rights 1950, in the cases of the other eleven independent countries of the Commonwealth Caribbean, can trace influences from Magna Carta.
In T&T, our constitutional foundation was best captured by Dr Eric Williams at a public meeting on July 19, 1955, in Woodford Square, Port-of-Spain, before he had entered electoral politics, when he said:
“The Colonial Office does not need to examine its second hand colonial constitutions. It has a constitution at hand which it can apply immediately to Trinidad and Tobago. That is the British Constitution. Ladies and gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago.”
It is within this model that our human rights provisions were subsequently included for the independence Constitution.
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”.
CATHOLICISM IN 19TH CENTURY ENGLAND
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.”
TERRORISM, RELIGION AND IMMIGRATION
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.
MUSLIMS IN BRITAIN
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?
KNOWING WHAT TO TOLERATE
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.
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.)
c. 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.
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.
March 1, 2016
Magna Carta Benches mark St Albans link
Councillor Annie Brewster has presented St Albans with handmade wooden benches to commemorate the 800th anniversary of the City’s association with Magna Carta.
The curved, solid oak benches were commissioned by Cllr Brewster who served as the Mayor of St Albans City and District in 2013/14.
She handed over the gift at a presentation ceremony at the War Memorial in St Peter’s Street where the benches have been sited.
Magna Carta is regarded as one of the most important documents in history as it established the Rule of Law with its human rights and obligations.
St Albans was the scene of the first meeting, on August 4 1213, held to discuss the content of the peace agreement between the Barons, the Clergy and King John.
The benches were made by Karl Barowsky of Solid Oak Hardwood Furniture, Hartlepool, which supplies benches to many Royal Parks.
Among those who attended the presentation were James Blake, St Albans City and District Council Chief Executive, The Very Reverend Dr Jeffery John, Dean of St Albans, Howard Guard, Deputy Lieutenant of Hertfordshire, Cllr Brewster, Jonathan Trower, High Sheriff of Hertfordshire, Judge Andrew Bright QC, Mr Barowsky and Lord McNally of the Magna Carta Trust.
Cllr Brewster said: “The historic meeting in St Albans Abbey led the way to the 1215 sealing of Magna Carta two years later in Runnymede.
“Similarly, in my 2013 Mayoral year, St Albans again led the way holding the inaugural events at the start of two years of national and international celebrations to commemorate the 800th anniversary of this world changing document.
“It has been a long tradition for the Mayor to give a gift to the City and, in days gone by, it was often a piece of silver.
“I received numerous requests for more benches in the City Centre and, as the District Council has just completed a project to create a circular paved garden area in front of the recently restored War Memorial, it has been the perfect opportunity to fuse heritage and function.”
The benches have six distinctive cut-outs of the St Albans saltire shield and were unveiled on Friday 26 February.
Mr Barowsky said: “I was delighted to be asked to design some benches worthy of such an important City. What we have created is a one off design. You will not find benches like this anywhere else in the Country.”
Councillor Annie Brewster, Portfolio Holder for Sport, Leisure and Heritage, St Albans City and District Council. Email: [email protected]
Tel: 01438 832255
Contact for the media:
John McJannet, Principal Communications Officer, St Albans City and District Council
Tel: 01727 296130
E-mail: [email protected]
December 21, 2015
ABA Magna Carta Memorial now Grade II Listed Monument
21st December 2015
The American Bar Association Magna Carta Memorial has been awarded a Grade II listing under the Planning (Listed Buildings and Conservation Areas) Act 1990.
The reason for its designation is for its ‘special architectural or historic interest.’
List entry Number 1430723, the Memorial overlooks Runnymede, where Magna Carta was sealed in 1215. On the 15th June 2015, the 800th anniversary of Magna Carta, the Memorial was the site of celebration and the focus of the world.
William Hubbard, President of the American Bar Association, Loretta Lynch, current US Attorney General, HRH Princess Anne, and the Rt Hon Philip Hammond, UK Foreign Secretary spoke at the Memorial on Magna Carta Day.
Three reasons were provided for the Grade II designation:
“The Magna Carta monument of 1957, by Edward Maufe, is listed at Grade II for the following principal reasons: * Historic interest: the memorial is the only specifically designed structure to commemorate the signing of the Magna Carta, which represents a seminal moment in the history of democracy for English, and later American, citizens; * Group value: a key part of the listed Runnymede group that includes Magna Carta House, Lutyens’ lodges and commemorative urns, Air Forces Memorial, and Kennedy Memorial; * Architectural interest: as an example of the work of the nationally celebrated architect Edward Maufe, displaying his signature style of modern classicism.”
The monument was constructed by Edward Maufe, and supported by the American Bar Association. It is the only official monument to Magna Carta in Britain today.
December 18, 2015
Words from the Chancellor of the Exchequer
The Rt. Hon. George Osborne, Chancellor of the Exchequer.
The following was read to the final meeting of the Magna Carta 800th Anniversary Commemoration Committee on the 3rd December, 2015.
I would like to congratulate Bob Worcester, Mark Gill and the Committee for their excellent stewardship of the 800th anniversary celebrations.
Magna Carta lies at the heart of British values – liberty, justice and fair play – values which this country has exported all round the world.
I am pleased that the Treasury has been able to play its part in making the anniversary a success, supporting over 100 projects and levering in a further £3 1/2 million of private and community finance on top of the £1 million Treasury grant.
But it’s the energy and enthusiasm of volunteers up and down the country – in villages, towns and cities – which have demonstrated Magna Carta’s contemporary relevance and resonance.
I very much hope members of the committee will continue to promote and nurture the legacy of Magna Carta so that our descendents will ensure that the 900th and 1000th anniversaries are as great a success as that in 2015.
Magna Carta returns from global tour
Over 25,000 people have seen Magna Carta on its global tour. The original 1217 copy has now travelled home to Hereford Cathedral in time for Christmas
Hereford Cathedral’s 1217 Magna Carta and King John’s only surviving Writ from 1215 have made history by undertaking an epic global tour to three continents, covering 37,000 miles and 25 time zones.
The GREAT Britain campaign worked in partnership with Hereford Cathedral, British Airways and venues in America, Luxembourg, China including Hong Kong, Singapore, Malta and Portugal to host special exhibitions displaying these unique artefacts.
This iconic document has now safely returned to the region which has played such a substantial role in its origins and history. One of the oldest symbols of rule of law in the UK, Magna Carta is just as relevant today in the home of world-leading law schools and a legal sector worth almost £23billion to the UK economy.
Throughout the course of the global tour which started in September, over 25,000 visitors have turned out to see the historical documents and learn about their global significance. Venues including the New York Historical Society, Sotheby’s Hong Kong and the National Library of Valletta in Malta reported that the Magna Carta exhibition was their most successful in recent memory.
The tour also made history as it was the first time that Magna Carta had ever been to China, including Hong Kong. Foreign Secretary Philip Hammond saw the display first hand in Lisbon and also visited it during the Commonwealth Heads of Government Meeting in Malta, along with Foreign Office Minister Hugo Swire.
Foreign Secretary Philip Hammond, whose constituency of Runnymede is where Magna Carta was sealed, said:
Magna Carta, one of the oldest surviving symbols of the rule of law, has returned to the UK following a successful 37,000 mile journey around the world. Thousands of people in three continents turned out to see it, showing how important democracy, individual freedoms and the rule of law are to people everywhere.
The cornerstone of the British legal system has contributed to the establishment of freedoms and laws right across the world.
Reverend Canon Chris Pullin, Chancellor from Hereford Cathedral, who accompanied Magna Carta on the global tour said:
“It has been a tremendous experience sharing such wonderful documents with people from around the world, and it is super to be back at home, sharing our tour stories and experiences with people from the diocese and surrounding counties. We will be ringing the Cathedral Bells to celebrate their safe return home.”
You can visit the Magna Carta at a display in Hereford Cathedral from Friday 18 December in the Mappa Mundi & Chained Library Exhibition, where it will stay until 2 January 2016. Visit Hereford Cathedral for details.
The tour was organised in partnership with The Chapter of Hereford Cathedral, Hereford Cathedral Perpetual Trust and the GREAT Britain Campaign, supported by British Airways who flew the document in their First cabin.
Magna Carta is a cornerstone of the British legal system which has become a powerful symbol of liberty around the world. 2015 marks the 800th anniversary of the charter being sealed at Runnymede. Magna Carta established for the first time the principle that everybody, including the king, was subject to the law. It marked the first step on the UK’s journey towards parliamentary democracy and has been used as a basis for democracies around the world.
Hereford Cathedral holds the sole surviving copy of King’s Writ and the best preserved of the 4 surviving manuscripts of 1217 Magna Carta. Hereford is a key location in the history of Magna Carta, as both Hereford Bishops played a role in the creation of multiple issues, and Hereford Barons were responsible for ensuring that the King complied with its terms.
More information on the tour and photos can be found here
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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.
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?’, 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.
October 22, 2015
English – Speaking Union: My Magna Carta winners announced
Wednesday, 21st October
The English – Speaking Union. Click here to read this article as it originally appeared.
The English-Speaking Union is delighted to announce the overall winners of the My Magna Carta international creative writing competition, following the grand final at Dartmouth House on Thursday 15 October 2015.
13 finalists from all corners of the globe presented their entries to an invited audience, leaving the judging panel with a very tough decision. Judges and audience members alike were overwhelmed by the quality of each presentation.
Jane Josefowicz, from the USA, won the overall Junior prize and Mfundo Radebe, from South Africa, won the overall Senior prize. Jane and Mfundo each received a certificate and a manuscript of their winning entry, published on parchment thanks to William Cowley. Marie Georgette Spiteri, from Malta, was awarded a special commendation in the junior category, and Sofija Jovanovic, from Serbia, won a special commendation in the senior category. Mfundo’s and Jane’s essays can be read here, along with all of the other finalists’ entries.
All of the finalists enjoyed a full week in London, with cultural activities, public speaking training and opportunities to exchange ideas and make new friends.
“My favourite thing about being involved with the My Magna Carta Competition…was meeting a lot of new people – we clicked right away”
Sofija Jovanovic, Serbia, My Magna Carta Finalist (Special Commendation)
The judging panel consisted of [Chair] Professor Kate Williams (author, historian, broadcaster and lecturer at Royal Holloway), Professor Sir Robert Worcester (Chair of Magna Carta 800th Committee and former ESU Governor), Professor Justin Champion (Professor of the History of Ideas, President of the Historical Association and advisor to the 2015 Magna Carta Exhibition) and Professor James Raven (Deputy Chairman of the ESU, Fellow of Magdalene College University of Cambridge and Professor of Modern History The University of Essex and author).
“I believe that young people are still inspired by the Magna Carta because they want to make a better world…they want to increase equality and diversity”
Professor Kate Williams (Chair)
My Magna Carta was run in partnership with Royal Holloway, University of London. The ESU is grateful to the Magna Carta 800th Committee for its funding.
October 19, 2015
Speech by Lord Dyson: Magna Carta and Compensation Culture
13 October 2015. Rt Hon Lord Dyson, Master of the Rolls at The High Sheriff of Oxfordshire’s Annual Law Lecture.
1. My first idea was to give a lecture about the so-called Compensation Culture: what is it and should we be concerned about it? That is a topical subject which the organisers of the lecture thought would be of interest. But as we all know, 2015 is the 800th anniversary of Magna Carta and it was pointed out to me that the Bodleian Library has no fewer than 4 of the 17 surviving pre-1300 engrossments of Magna Carta. So I was asked whether I could introduce a Magna Carta theme into my lecture? I did not want to give up on Compensation Culture. Hence the somewhat Delphic title of the lecture “Magna Carta and the Compensation Culture”. The title was the easy bit.
2. On Christmas Eve 1166, Henry II’s youngest son John was born at Beaumont Palace in this great city. The Palace no longer exists, but set into a pillar on the north side of Beaumont Street is a stone which bears the inscription “near to this site stood the King’s Houses later known as Beaumont Palace”. John was not a good king. According to one historian he was not even a good ‘bad’ king’. Unlike his Angevin predecessors who were ‘effective tyrants’, John did not even qualify to earn that doubtful accolade. As we approach the end of 2015, we do not need to be reminded that the most enduring consequence of John’s reign is Magna Carta.
3. Magna Carta, or – as it was originally known – the Charter of Runnymede, started life as a peace treaty between John and his barons, a significant number of whom could no longer tolerate the way in which he abused his powers as King. A particularly egregious example was his misuse of the justice system. In the words of McKechnie, he used it to satisfy ‘his lust and greed’. The machinery of justice was nothing more than ‘instruments of extortion and outrage’ by which he could channel the flow of ever increasing amounts of money into the royal coffers.
4. One of the ways in which John achieved this was by selling justice to the highest bidder. Since 1209, the Court of Common Pleas had followed the King around the country. Cases were decided by the King’s Court. In addition to John, it included ‘the whole body of counsellors, ministers, knights, clerks and domestic servants who (accompanied the King).’ Not an independent court, as we would know it. Decisions were made either by the King himself or, if by others, they were heavily influenced by him.
5. This system provided the perfect environment for the making of what were known as ‘proffers’. Proffers were payments of money made by litigants to the King in order to obtain favourable decisions. And if one litigant was willing to make a proffer, his opponent might consider that he had to make a higher proffer in order to win the case. In other words, justice was sold to the highest bidder on the basis that they would receive a pay-out if judgment was obtained in their favour. Money was not only paid to secure favourable decisions at the end of a hearing. It was also paid to halt justice in its tracks. In order to secure support for his war efforts, in 1206 John offered the incentive to his knights that, if they joined the army, claims against them would be stayed.
6. In view of John’s predilection for deciding disputes involving his barons which would previously have been dealt with by a Court of Barons – that is by the barons’ peers–it is hardly surprising that in 1215 abuse of justice featured prominently in the list of the barons’ grievances and consequently in the clauses of Magna Carta.
7. Thus chapter 17 provided: “ordinary lawsuits shall not follow the royal court around, but shall be heard in a fixed place”. The Court of Common Pleas was to resume sitting at Westminster Hall. Chapter 45 guaranteed that the King would only appoint ‘such men that know the law of the realm and are minded to keep it well’ as judges. No longer were claims to be decided by those unqualified in the law. Chapter 39 provided that ‘No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by lawful judgment of his peers or by the law of the land.’ The barons were to be judged by their peers in the Barons’ Court or by the law of the land. No longer were they to be subject to the capricious rulings of the King and his court. And Chapter 40 guaranteed that ‘To no one will we sell, to no one will we deny or delay, right or justice.’ The age of the proffer, of abuse of the justice system as a means of swelling the Exchequer’s coffers, was to be brought to an end.
8. Chapters 39 and 40 are famous to this day. They have a resonance which continues to thrill. They remain on the statute book, in slightly revised language, as section 29 of the 1297 version of Magna Carta. While they were born out of the barons’ immediate concerns to put an end to John’s abuse of the justice system at their expense and to restore their privileges they have, over the centuries, taken on a life far beyond that narrow self-interest. They stand today as a symbol of our commitment to equality before the law, access to justice and the Rule of Law. In the 17th century they were an inspiration for Lord Coke CJ and the Parliamentarians in the struggle between the Stuart Kings and Parliament. Later they inspired the American revolutionaries in their battle against the English.
9. One tenet of Magna Carta that remains as valid now as it was in 1215 is its statement that justice shall be done by ‘the law of the land’. It is not surprising that our view of what the law of the land should be today differs markedly from what the barons thought it should be in 1215. But the principle that justice should be done according to the law of the land is as important today as it was in 1215. Establishing and preserving the rule of law is a vital pillar of our democratic system. To use the language of a later version of Magna Carta, justice must be determined according to ‘the due process of law.’
10. Our common law has developed over the centuries in response to changing social and economic circumstances. Sometimes it has developed slowly and almost imperceptibly; sometimes it has taken large strides forwards. All of this is entirely consistent with the rule of law provided that the developments are visible, applicable to all who wish to have access to the law and disputes as to the application of the law continue to be determined fairly by independent judges.
11. A well-known example of a giant leap forward of the common law in this country is the famous 1932 case of Donoghue v Stevenson. The alleged facts are probably well known to many of you. Two people went into a café in Paisley, near Glasgow. One bought the other a bottle of ginger beer. Half the contents of the bottle were poured into a glass and consumed. The rest of the ginger beer was then poured into the glass. A rather strange-looking object fell out of the bottle. On close inspection it appeared to be the decomposing body of a snail. Shortly afterwards the woman who drank the ginger beer developed a severe stomach upset. She started proceedings claiming compensation from the manufacturer of the drink.
12. She could not claim damages for breach of contract because she had no contract with the manufacturer or with the owner of the café. She framed her claim in tort. But at that time it had not been established that such a claim could be made. In one of the most far-reaching and important cases in the development of our law, the House of Lords decided that such a claim could in principle be brought in the tort of negligence. Thus, provided that the manufacturer owed the woman a duty of care and she had suffered loss as a result of a breach of that duty, she would be entitled to compensation for her loss. The House formulated the rule for determining whether a duty of care was owed. The essence of the rule was enshrined in the “neighbour principle”. This was a far cry from simply asserting that, provided that the woman had suffered loss as a result of consuming the ginger beer, she would be entitled to compensation. This was a principled development by our independent judges of the law of the land as expressed in our common law. It was made in response to the perceived social and economic needs of the time. In its essentials, it was a natural application of the principles of Magna Carta.
13. It is time to turn to the issue of compensation which lies at the heart of this lecture. The socalled compensation culture has been criticised as a form of abuse with as much passion as the barons complained of John’s abuses. An article by Professor Frank Furedi in 2012 complained about it ‘poisoning our society’. A number of academic, government and Parliamentary studies have made recommendations as to how it should be tackled. Parliament has twice passed legislation aimed at eliminating or at least reducing it: the Compensation Act 2006 and the Social Action, Responsibility and Heroism Act 2015.
14. There is nothing new in the idea that, where a right is infringed, monetary compensation is the primary means by which the law makes good any loss caused by the infringement. It was present in the first English law code, issued by King Æthelberht, King of Kent, in about 602 CE.12 It set out a detailed set of fines and compensation. If, for example, a freeman was found to have committed adultery he would be required to pay the injured party a ‘wergeld’ – the value of the injured party’s life. He would also have to ‘provide another wife with his own money, and bring her to the other.’ More prosaically: loss of an eye required payment of fifty shillings compensation; loss of a thumb, twenty shillings; and loss of the shooting finger – the one needed to use a bow and arrow effectively – eight shillings. If you cut someone’s ear off you were required to pay compensation of twelve shillings. If you merely mutilated it, you would only have to pay six shillings.18 If, however, you cut the ear off and your victim was deaf in the other ear, you would have to pay twenty-five shillings. Compensation was proportionate to the harm; a requirement that was later echoed in Magna Carta’s treatment of criminal offences: it required punishments to fit the crime – to be proportionate to the offence.
15. By the 19th Century, the idea of compensation for harm was as well established as it had been in the 7th Century. Records held by Aviva, the insurance company, provide some fascinating detail. A grocer who slipped while playing blind man’s buff was awarded the equivalent of £724 compensation. A travelling salesman who was watching an accident, while on the top deck of an open-topped tram and was hit by a pole received the equivalent of £401 compensation. A wedding guest who was hit in the eye with rice thrown presumably over the happy couple received the equivalent of £2,994. And, for slipping on orange peel whilst shopping, a bank clerk received the equivalent of £8,901 compensation. The level of compensation may have changed over time, but the principle underpinning the Anglo-Saxon and Victorian approaches was the same: if one person was legally responsible for causing harm to another, he was required to pay the victim compensation to vindicate his rights and make good the harm caused. This principle continues to apply today. We have our own version of Æthelberht’s code which indicates the level at which compensation should be awarded. The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases is a distillation of typical awards of damages made by judges for various personal injuries. For example, it states that loss of an eye now attracts between £40,300 and £48,200 compensation; and minor or transient eye injuries, such as that which the Victorian wedding guest suffered, would attract compensation of between £1,620 and £6,400.
16. There is therefore nothing new about the idea that the law requires the payment of fair compensation for harm which results from civil wrongs. It is long established. It is one of the hallmarks of the Rule of Law and of the law of our land. But what is compensation culture and how does it fit in to all of this? Lord Falconer, who was Lord Chancellor at the time, gave an apt definition in 2005. He put it this way:
‘‘Compensation culture’ is a catch-all expression. . . It’s the idea that for every accident someone is at fault. For every injury, someone to blame. And, perhaps most damaging, for every accident, there is someone to pay.”
It is the idea that for every accident and every resultant injury or loss, someone other than the victim of the accident is to blame. The victim must, therefore, always be compensated. It is important not to confuse compensation culture with no fault compensation. No fault compensation is a legal principle according to which a person (C) is entitled to compensation for loss caused by another person (D) regardless of whether D was in any way at fault. This is an intellectually respectable principle which society may choose to embrace. But in doing so, it must face up to its costs and economic consequences.
17. On the other hand, the compensation culture is not a legal principle at all. It has not displaced the principles of the law of negligence, whose essential elements remain as they were propounded in Donoghue v Stevenson. Rather, to the extent that it exists, it is evidence of an attitude borne of an expectation as to how in particular defendants will behave in their approach to the application of the principles of the law of negligence. In short, an expectation that defendants will pay up rather than fight and risk losing. This has led to the idea that the compensation culture implies that there is no need to establish that a duty of care was owed to the injured party by whoever is viewed as being responsible; and there is no need to establish a breach of duty and causation of loss. All that the injured person has to do is to litigate (or even merely threaten to litigate) irrespective of the legal merits of the claim, and compensation will follow.
18. One consequence of this is the view that as a society we have undergone a cultural shift. No longer is British society characterised by a somewhat philosophical and accepting approach to life. On the contrary, the view is taken that we are becoming more American in our approach; more ready to rush into litigation. To borrow from Tony Weir, we have become a ‘wondrously unstoical and whingeing society with (an) endemic compensation neurosis’, and which rather than sees us ‘grin and bear it’ sees us ‘grit (our) teeth and sue’.
19. Perhaps even more dangerously, this shift in approach has been accompanied by a growing concern that an unjustified burden is now being placed on employers, businesses, schools, the NHS and local and central government (as regards payment of compensation and, even worse, legal costs which often substantially exceed the amount of compensation). To make matters worse, all of this is said to be giving rise to defensive practices on the part of such bodies. It is said that, as a consequence of the compensation culture, schools now ban conker fights on health and safety grounds; and school trips no longer take place. I should say that the conker story rests on a misunderstanding of the law by a no-doubt well-meaning head-teacher and has been described by the Health and Safety Executive as ‘a truly classic myth.’
20. Media stories to this effect are commonplace. They tend to be about payments of large amounts of money for seemingly trivial injuries; not unlike those mentioned in Aviva’s records from the 19th Century. In June 2011 a school pupil was reported as having received nearly £6,000 in compensation. He had burnt his hand at school during his lunch break. Spilt custard was the cause. In 2013 a police officer was reported to have received £10,000 in compensation for injuries caused by a fall from a chair. More recently, a payment of £12,000 was reported to have been made to someone who was injured by a ‘toilet lid while flushing’. Someone else was apparently paid £12,566 compensation for injuries caused as a result of a foot becoming stuck in a Henry Hoover. A Google search will no doubt reveal many more such stories, each of which furthers the perception that something has gone badly wrong with civil justice in this country.
21. All of this acts as a spur to enterprising solicitors to encourage clients to launch speculative claims on a no-win no-fee basis. Clinical negligence claims are a good example. Some solicitors advertise their services on boards close to hospitals informing patients that, if they have not been satisfied with their treatment, they can sue the hospital authority at no cost to themselves. But many unsuccessful treatments are not the result of negligence. Patients may die despite the best possible surgery. The harsh commercial reality is that the legal costs to the NHS of defending a clinical negligence claim are often out of all proportion to the amount of damages that it will have to pay if the claim is successful. For this reason, the NHS is often willing to pay a claimant a sum to buy off a claim, even one which it considers is likely to fail. Claimant solicitors are only too aware of this.
22. I should also mention whiplash claims. These are claims for damages for whiplash injuries usually sustained in motor accidents. It has been said that whiplash is a peculiarly UK disease. It accounts for about 80% of car accident injury claims. In other countries, the figure is far lower. There is no doubt that there has been something of a whiplash industry in our country in recent years and our Government is rightly trying to do something about it. The problem is that insurers usually pay up because the cost of contesting the claims is simply too high. All of this would tend to suggest that litigation is out of control and that we are in the grips of compensation fever. Is this really the case? As I shall now explain, the situation is not straightforward.
23. Let us take the case of the school child who was reported as having received almost £6,000 for the burn that he sustained from hot custard. It is easy to see how this could be portrayed by the media as an example of the compensation culture running riot. £6,000 may seem a ridiculous amount of money to pay by way of compensation for a burn caused by custard. But how hot was the custard and how serious the burn? If it caused no real pain or lasting harm, then the payment was clearly exorbitant. But if the burn was severe and painful and left permanent scarring, the position would have been quite different. In other words, one’s perception of the reasonableness of compensation is coloured by the way in which the story is presented.
24. The difference between perception and reality is well illustrated by two famous examples drawn from America. They were relied on by Anthony Hilton in an article he wrote in the Daily Mail in 2003. He said: ‘The claims culture and the compensation culture have taken root [here]. . . It is not as bad yet as in the United States, for which we should be grateful. McDonald’s had to pay out for not telling a customer the coffee she bought and then spilled was hot, but a similar claim here was tossed out because coffee is meant to be hot. That is as nothing, however, when compared with the Winnebago case where the driver left the wheel of his mobile home while his vehicle was speeding down the freeway and went into the back to brew a coffee. With no-one steering, the vehicle crashed, but the owner sued successfully because no-one had told him it was unsafe to leave the driver’s seat when doing 70mph.’
25. The facts alleged in the Winnebago case were that a woman was awarded $1.7M in compensation after putting her motor vehicle on cruise control at 70 mph, and then getting up to make herself a cup of coffee in the back. She claimed that Winnebago (the manufacturer) should have warned her that she could not leave the driver’s seat after putting the cruise control on. The basis of the claim was that it had failed to put a warning in the driver’s manual explaining that cruise control was not an auto-pilot device. This is an extraordinary tale and, if true, would have been a good example of the wilder excesses of the compensation culture. But the problem with the story is that it is simply not true. As the Los Angeles Times described it, it was “a complete fabrication”.
26. As portrayed by the media, the spilt coffee case involved a woman who foolishly placed cup of hot coffee between her legs while she was driving a car. She had bought the coffee from a drive-thru McDonald’s. She had to brake the car suddenly and the coffee spilt over her legs. She sued McDonalds. They were to blame for her burnt legs. A court agreed and she was awarded many millions of dollars in damages. That is the story; the reality is rather different.
27. The case was a real case, namely Lieback v McDonald’s Restaurant. Stella Leiback, the injured party, was in a car. But she was not driving. She was a passenger. And the accident did not occur when the car suddenly stopped. It happened when it was stationary. She had not placed the coffee between her legs because that was convenient whilst she was driving. She placed it there to hold it still while she tried to take the lid off. The coffee was extremely hot. In fact, it was between 180 – 190 degrees fahrenheit. It did spill and burn her. It caused third-degree burns to various parts of her body, resulting in a hospital stay of eight days for treatment, skin grafts. It caused her to suffer permanent scarring and two years’ partial disability. She did not rush to the courts. She only sued McDonalds after it had rejected her request for payment of her medical expenses and her daughter’s lost wages (her daughter had had to take time of work to look after her). In total she had asked for $10,000 to $15,000. In the face of that refusal, she issued proceedings not in negligence, but under a certain strict liability statutory provisions.
28. The claim went to trial before a civil jury. Jurors can comment on their experience in the US. Some of them were reported as having commented that they were ‘insulted’ to be asked to hear such a case, that it ‘sounded ridiculous’, and that it was a waste of time over a ‘cup of coffee’. It seems that these jurors thought that this was a case of compensation culture run wild. But their view changed during the trial. The evidence showed that between 1982 and 1992, more than 700 claims had been brought against McDonalds arising out of coffee burns, some of them third-degree burns. McDonalds knew that the coffee, which it insisted on serving at a temperature of between 180 and 190 degrees, was dangerous. Its quality assurance manager admitted that the coffee was not ‘fit for consumption’ and that it would scald the throat. Its expert witness accepted that coffee served at more than 130 degrees could produce third degree burns, and that coffee served at a temperature of 190 degrees would burn skin in two to three seconds. It is, therefore, not surprising that the jury was willing to find that the coffee was a defective product, and that McDonalds had sold it in breach of the implied warranty of merchantability and of fitness for purpose.
29. The jury found in Ms Leiback’s favour, albeit with a reduction of 20% for contributory negligence on her part. She was awarded $160,000 for the injuries and $2.7 million in punitive damages, which was intended to represent two days’ profits earned by McDonalds from coffee-related sales. The judge reduced this aspect of the award to $480,000. Despite the judgment, the claim was subsequently settled for an undisclosed sum, no doubt in the face of a possible appeal. It can therefore be seen that the portrayal of this case by Mr Hilton in his article was a caricature. This was a serious claim which amply justified an award of compensation.
30. So what is the position in England and Wales? The perception is clear: compensation culture has taken firm root here and unwarranted and excessive compensation is routinely paid to claimants. This perception seems to persist despite studies and reports showing, as a Parliamentary enquiry put it, that the ‘evidence does not support the view that increased litigation has created a “compensation culture”. It is worth asking whether the behaviour of our courts has contributed to this perception. Let me give you some examples which show that our judges are astute not to do anything to encourage the bringing of unjustified claims.
31. My first example is an English version of the US McDonald’s coffee case. In 2002, thirty-six claimants, the majority of whom were children aged between four and sixteen, sued McDonalds. The claims were all for personal injuries which were said to have been caused by spilled hot drinks. Some of the claims were based on alleged negligence; others were brought under consumer protection legislation. As Field J put it, there ‘was a risk that a visitor might be badly scalded and suffer a deep thickness burn by a hot drink that is spilled or knocked over after it has been served.’Unlike Ms Liebeck, the claimants failed on all issues. McDonald’s was held not to have been negligent in serving coffee at high temperatures. The judge held that the cups and their lids had not been designed and manufactured negligently and there had been no breach of consumer protection law.
32. My second example is Tomlinson v Congleton Borough Council & Others which was decided by the House of Lords in 2003. One hot bank holiday in 1995, the claimant decided to go for a swim. He and friends were in the local park. They had been there many times before. In the park there was a flooded sand quarry, which had been made into a place for families to sunbathe and paddle in the water. As it was such a nice day and he was hot, the claimant decided to dive into the water to cool off. This was not the first time he had done this. Tragically however he hit his head on the bottom of the quarry. He broke his neck and, as a consequence was left a tetraplegic. He sued the local council. The House of Lords rejected the claim. In doing so Lord Hoffmann reiterated a principle that is entirely at odds with the idea that our courts are promoting a compensation culture. He said:
‘. . . the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one’s own fault or even not one’s own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else’s fault.’
The law is fault-based. It requires a claimant to establish a duty of care, breach and causation of loss. These are not always straightforward matters and if a claimant fails to establish any one of them, his claim fails. The courts have not in recent years lowered the hurdles that a claimant must surmount.
33. My next example concerns occupiers’ liability as well as negligence. It is the case of West Sussex County Council v Pierce, which I heard in the Court of Appeal, and which the Daily Telegraph reported could have led to water fountains being ‘banished’ from schools. The claimant was a nine-year-old boy. He and his seven-year-old brother were in the school playground. They went over to the newly fitted stainless steel water fountain. It was of a type that is common throughout schools in England and Wales. The younger brother sprayed the claimant with water from the fountain. He retaliated and tried to punch his brother, who was cowering underneath the fountain. He missed, and his punch hit the underside of the fountain. He sustained ‘a laceration to the dorsal aspect of his right thumb and associated tendon damage.’
34. Apart from a small scar to his thumb, he made a full recovery. The claim was brought against the school on the basis that the water fountain had a sharp underside edge, which posed a ‘real and foreseeable risk of children coming into contact’ with it. It was said that the school had failed to consider the risk or take steps to mitigate it. At trial, having examined the water fountain, the judge held that it was sharp and that the school was liable for failing to consider the risk. The Court of Appeal overturned the decision. It too examined the water fountain, but did not agree that it could properly be described as sharp. It also held that the wrong legal test for liability had been applied by the judge. The legal question was whether, viewed objectively, the school was reasonably safe to those on the premises bearing in mind that children ‘are inclined the lark around.’ It was, and as Sharp LJ put it, ‘The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.’
35. Espousal of the compensation culture might suggest that any injury caused in the course of games or sporting activities ought to result in an award of damages. If correct, this would have a seriously adverse effect on professional sport as well as school and amateur sports. In 2004 in the case of Blake v Galloway, if you will forgive reference to another case in which I was involved, the Court of Appeal was asked to consider the question of liability for such injuries in a somewhat unusual context. The claimant was with a group of friends practising as part of a jazz quintet. They decided to take a break from their rehearsal. They went outside and started playing a rather bizarre impromptu game. It involved picking up and throwing twigs and bark at each other. The claimant picked up and threw a four-centimetre piece of bark at one of the others which hit him on the leg. His friend picked it up and threw it back at the claimant. It hit him in the right eye and caused a significant injury. The claimant issued proceedings alleging that the injury was caused by the defendant’s negligence and/or battery. The defendant, amongst other things, contended that the fact that they were playing a game meant that any liability was vitiated by the claimant’s consent. To rely on a consent-based defence it is however necessary first to establish liability. The Court of Appeal held that liability had not been established. In an informal game such as that in which the claimant and his friends had engaged (like in organised sport), liability was not established unless the offending conduct amounted to either reckless conduct or exhibited a very high degree of carelessness. If the defendant had, for example, chosen to throw a stone rather than a twig (contrary to the conventions of the informal game in which they were involved), that might have been reckless and sufficient to amount to a breach of duty of care. But what happened in this case was simply an unfortunate accident. There was no actionable negligence. What about the claim in battery? The general rule in sporting activities that involve the risk of physical contact is that the participants impliedly consent to such contact as can reasonably be expected in the course of the game. There was such implied consent here, as long as the participants did no more than throw twigs according to the tacit rules of their informal game. The defendant had done no more than this. The claimant accordingly had given his consent and could not establish liability for battery either. His claim was, therefore, rejected. This is another example of our courts adopting a robust, common sense approach to claims for compensation which is inconsistent with the idea that they are giving encouragement to the advancement of a compensation culture.
36. What do these four cases illustrate? I think one answer is that our courts are well aware of the dangers of contributing to the idea that all injuries should result in compensatory awards. They are decisions that cannot be seen as encouraging the idea that anyone who suffers an injury has a remedy in damages. The judgment of Field J in the Bogle case applied conventional, well-known and well-understood principles of law. The Tomlinson case underscored the necessity of establishing fault. The Pierce case showed that the risk of injury has to be real and foreseeable; remote or fanciful risks will not suffice. And Blake emphasised the need for culpability to the requisite standard as a condition of liability. A common theme is that accidents can and do happen and that the law does not compensate for accidents in the absence of legal responsibility.
37. Thus the reality of what goes on in our courts does not match the perception that we are in the grip of a compensation culture. The difference between the reality and the perception is problematic. In 1979 two US scholars wrote a famous article entitled Bargaining in the Shadow of the Law: the case of divorce. It considered the effect that the framework provided by the law had upon divorce or rather the impact that legal framework had upon ‘on negotiations and bargaining that occur outside the courtroom.’48 The essential point that has been repeated by a number of scholars, including recently by Professor Dame Hazel Genn, is that the law casts a shadow far beyond the courtroom. It guides conduct. It provides the framework within which businesses operate, schools organise activities for pupils, doctors operate within hospitals, local authorities maintain pavements and so on. Moreover, it helps to create as Professor Genn puts it, ‘the credible threat of litigation if settlement is not achieved.’We act in the shadow of the law. What if the shadow is a false one? If, for instance, we have a false perception that the law prohibits certain activities or requires certain steps to be taken, we are likely to act in accordance with this perception. A perception that the law requires compensation for any accident regardless of the circumstances is likely to lead individuals, businesses and governments to act on the basis that the perception is true. This might have the consequence that nobody apologises for bumping into another person in case that is taken as an acknowledgement that an accident has occurred which attracts legal liability.
38. Another consequence might be that schools ban certain activities as a result of their misperception of the law. More significantly perhaps, a false shadow of the law might lead to threats of litigation and then to settlements that would not have been made if the law had been properly understood. This last concern is particularly worrying. As I said earlier, defendants are probably often induced to make what they refer to as “commercial” settlements for reasons which have little, if anything, to do with their assessment of the likely outcome of a court hearing. Litigation is inherently uncertain. The behaviour of witnesses and, dare I say it, judges is unpredictable. Most troubling of all is the fact that the cost of litigation is so high. Legal fees are exorbitant. The laws of competition and the market place seem to be helpless in resisting the rising tide of the cost of litigating. Many would-be litigants simply cannot afford to go to court. The obvious solution is to introduce reasonable and proportionate fixed legal costs. Our Government is taking a long time to grasp this nettle.
39. Meanwhile, the perception that we are in the continuing grip of a compensation culture casts its false shadow. It is a shadow that should vanish if the litigation landscape is surveyed properly in the bright light of the cases that have been, and I trust will continue to be, decided in this country. I have only mentioned four such cases. There are many more. They do not attract media publicity. That is because they are balanced and sensible and therefore do not make for a good story. They do not support the existence of a compensation culture. They are applications of “the law of the land”, that precious gem which shines in clause 39 of Magna Carta and which, 800 years later, continues to be rightly valued as essential to the well-being of our system of justice.
40. The link between the compensation culture and Magna Carta may not be immediately obvious. The existence of the link would certainly not have occurred to King John and the barons. Indeed, I am certain that I would not have chosen the title of this lecture if I had not been delivering it in 2015. But perhaps the link becomes a little less Delphic when one focuses on the significance of the phrase “the law of the land”. In this year when we celebrate the 800th anniversary of Magna Carta, just as the barons demanded their right to receive justice according to the law of the land, we should remind ourselves of what the law actually requires and do what we can to explode the false perception of compensation culture.
41. Thank you.
October 14, 2015
Magna Carta not welcome at Beijing university
The Financial Times, 14th October 2015.
By Lucy Hornby in Beijing.
Click here to read the article as it appeared on the FT website.
Eight centuries after the Magna Carta was issued, it is still making waves — this time in Beijing, where nervous authorities have blocked an exhibition of a rare parchment copy of the “foundation of freedom” charter. Far from cementing a touted “golden era” of Sino-British relations, authorities apparently worried that the Magna Carta, which threw medieval England into a spin by curbing the monarchy’s powers, would sow unwelcome ideas into the minds of Chinese students.
The exhibit, which was to have helped kick off next week’s visit by President Xi Jinping to the UK, is now nestling in the quieter halls of the British ambassador’s residence rather than Beijing’s Renmin university campus.
China’s view of the rule of law chafes somewhat with that espoused by the Magna Carta, described by the late English barrister Lord Denning as “the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot”.
China is promoting its own rule of law while in the throes of a political consolidation under Mr Xi that has led to tighter controls over civil society, the media and academics.
Observers quip that China’s vision is closer to “rule by law”, where an authoritarian state exerts its own power through laws and courts rather than itself being subject to those laws, as enshrined in the Magna Carta.
The charter itself, signed by England’s unpopular King John in 1215 and handing justice and the right to a free trial to all, contains provisions also found in China’s constitution. Indeed, the Magna Carta is called “Da xian zhang” or “Great Constitution Charter” in Chinese.
However, the term “Constitution” is sensitive in modern days, after the ruling Communist party squelched progressive lawyers’ efforts to force it to adhere to China’s own laws, a movement known as “Constitutionalism”.
A leading figure in that movement, lawyer Xu Zhiyong, is serving a prison sentence on charges of “disturbing public order” after he tried to organise a public campaign for officials to reveal their wealth.
The eleventh-hour switch of venue for the Magna Carta, on loan from Hereford Cathedral, was forced after Beijing’s approvals failed to materialise. “There are some formalities they needed to go through if we wanted to display it,” said a scholar affiliated to Renmin university.
Some Chinese students in the long line outside the residence said they had skipped class to see the document. But for history graduate student Liu Yongxi the change of venue was welcome.
“I think its even better to see it here,” she said. “You have a stronger sense of tradition, of Britishness.”
Earlier in September Renmin university did manage to hold a seminar on the Magna Carta and rule of law, attended by more than 100 Chinese and foreign scholars including the former president of China’s Supreme Court.
Additional reporting by Owen Guo.
Chinese activists urge Xi Jinping to learn from Magna Carta
Tuesday 13th October. Tom Phillips in Beijing.
Click here to read the original article as it appeared on the Guardian website.
Civil rights campaigners hope arrival of ‘Great Charter’ of 1215 will act as reminder to president about abuses of state power.
Chinese activists have urged President Xi Jinping to visit a rare exhibition of Magna Carta in Beijing, after the text, which some celebrate as a cornerstone of modern democracy, went on display as part of commemorations of its 800th anniversary.
A 1217 version held by Hereford Cathedral, one of only 17 surviving 13th century texts of the “Great Charter”, was put on show at the British ambassador’s residence on Tuesday. It will head to Shanghai and Guangzhou later in the week.
British officials have hailed Magna Carta’s arrival as the latest milestone in a “golden era” of UK-China relations during which Xi will pay a state visit to Britain next week.
Mark Gill, the head of the Magna Carta 800th anniversary committee, said he hoped to boost awareness and understanding of the text, which was issued in 1215 by King John of England and is held up as symbol of governmental accountability and individual freedoms. Fewer than one in five people in China had even heard of it, Gill claimed.
As the Magna Carta went on show, Chinese activists called on Xi – who has been accused of launching an unforgiving crackdown on dissent – to go to see a text the British Library has called “a potent, international rallying cry against the arbitrary use of power”.
“I very much hope that Xi can go and see [the exhibition],” said Yu Wensheng, an outspoken attorney who was among those targeted during a continuing roundup of civil rights lawyers.
Yu said Magna Carta’s presence in China “should serve as a reminder to [Xi] and the leadership that cracking down on lawyers is wrong and futile”.
Liu Shihui, another civil rights lawyer, noted Xi often name-checked famous pieces of writing including Hemingway and Dostoyevsky. “I hope he can spend some time reading Magna Carta,” Liu said.
Sir Martin Davidson, the chairman of the Great Britain China Centre in Beijing for the exhibition’s launch, recognised King John’s text was arriving at a sensitive time. A political chill has descended on Beijing since Xi came to power in 2012 and a severe crackdown is under way.
“One wouldn’t be surprised that it is slightly uncomfortable because I think China is struggling with some of those very big issues about what is the relationship between the state and the law, what comprises the state,” he said.
Many Chinese were interested in Magna Carta because it symbolised the moment at which “the king became subject to the rule of law and the king’s power was, if you like, constrained by the nature of the rule of law”, Davidson said.
But he denied bringing the document to China was an attempt to preach to Beijing. “I don’t think there is any point in saying: ‘We’ve got a system, just copy it.’ That’s not going to happen.”
During a speech in June marking Magna Carta’s 800th birthday, the UK prime minister, David Cameron, celebrated the text as a symbol of “liberty, justice, democracy [and] the rule of law”.
“All over the world, people are still struggling to live by the rule of law and to see their governments subject to that law. The countries that have these things tend to be the long-term successes. Those who don’t tend to be the long-term failures,” he said.
Experts say such ideas will be low on the agenda when Xi’s state visit begins next Tuesday. The British chancellor, George Osborne, recently vowed to make Britain China’s ”best partner in the west” and activists accuse London of falling silent on Beijing’s human rights record to avoid damaging business ties.
Kerry Brown, a former British diplomat in China and the author of a forthcoming book on Xi, said Britain’s China policy was clearly being dictated by the Treasury, with thorny issues such as human rights pushed to one side.
“[Xi Jinping’s visit] is going to be remorseless and relentlessly about parting the Chinese and their money. That is really what we are interested in,” Brown said, pointing to plans for Chinese investment in British nuclear power plants and infrastructure.
China expects Britain to roll out the red carpet during Xi’s visit next week, which involves events in London and Manchester.
But it is unclear how welcome Magna Carta is in Beijing. Plans to put the text on show at the capital’s prestigious Renmin University were unexpectedly scrapped. Asked if Chinese authorities had prevented it from being publicly displayed there, Sir Martin said: “Not that I’m aware of. There simply wasn’t the time to put in place the right mechanisms,” he said.
Additional reporting by Luna Lin
October 12, 2015
The Legacy of Magna Carta
‘The Legacy of Magna Carta: Justice in the 21st Century’, The Right Hon. the Lord Thomas of Cwmgiedd, The Lord Chief Justice of England and Wales, Speech to the Legal Research Foundation, 25th September 2015.
Click here to read the article as it originally appeared.
1. It is both a pleasure and a privilege to have the opportunity of speaking at the Legal Research Foundation today, in the year in which the 800th anniversary of Magna Carta is celebrated, in which New Zealand celebrates the 25th anniversary of its Bill of Rights Act and in which the Legal Research Foundation celebrates its 50th anniversary.
2. At this late stage of the 800th anniversary year, I hope you will forgive me if I skip over all attempts at a history lesson, for the use of Magna Carta by the judges of the courts of common law in the seventeenth century and its influence in the bills, charters, declarations and constitutions worldwide are so well known and have been much worked over this year.
3. I will therefore turn at once to the two best known clauses – clauses 39 and 40:
(39) No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.
(40) To no one will we sell, to no one will we deny or delay right or justice.
4. These clauses embody principles that no one now disputes: due process and equality before the law and access to justice. I hope it will be of greater interest if I concentrate on the latter, given the shape of today’s programme. In any event, without proper access to justice, other rights to due process and equality before the law and the detailed principles contained in bills of rights cannot be vindicated. It is also opportune not to overlook what is happening in our contemporary society to access to justice; many unfortunately do.
5. In examining the issues relating to access to justice today, the legacy of Magna Carta is not found only in clauses 39 and 40. I will therefore consider the principles underlying some of the other clauses of Magna Carta to see how they should influence our future thinking so as to safeguard access to justice and the vindication of the other rights.
6. I can only look at the present position in relation to access to justice as a common lawyer based in Europe. In that European context and given developments since the 2008 financial crisis, I think it helpful to look at three significant issues which have to be addressed if access to justice is
to be properly available, so that the other rights set out in Magna Carta and its “offspring” can be vindicated and developed:
i. financing access to justice at a time of tightening of state budgets;
ii. setting the proper scope of the private sector provision of justice;
iii. strengthening access to justice in the courts through technology and reformed processes.
7. It is not apposite for a judge to welcome or regret reduced state budgets, the growth in the private sector provision of justice or the advent of new technology, but it is essential to address each of these if we are to safeguard our legacy and to provide the values embodied in Magna Carta for future generations. This is particularly important so as to preserve the centrality of justice in terms of the maintenance of the prosperity, democratic government and good order of our nations.
Access to justice and the financing of the courts.
8. Along with executive and legislative functions, the provision of a justice system through which the judicial function is exercised is generally accepted as a core duty of the state. Clause 40 embodies what we have come to regard as a fundamental function: the provision of an expeditious and effective system of justice available to all. However, it has certainly in England and Wales never been a system, unlike our National Health Service, that has been free at the point of delivery. The user has always had to make a contribution to its cost through the payment of fees, which have always been charged.
9. There have been philosophical objections to this. Bentham described them as a tax on litigation. He railed against that policy in trenchant terms: Justice is the security which the law provides us with, or professes to provide us with, for everything we value, or ought to value for property, for liberty, for honour, and for life. It is that possession which is worth all others put together: for it includes all others. A denial of justice is the very quintessence of injury, the sum and substance of all sorts of injuries. It is not robbery only, enslavement only, insult only, homicide only – it is robbery, enslavement, insult, homicide all in one. The statesman who contributes to put justice out of reach, the financier who comes into the house with a law-tax in his hand, is an accessory after the fact to every crime; every villain may hail him brother, every malefactor may boast of him as an accomplice.
10. Although the principle of charging fees was much debated well into the nineteenth century as a result of Bentham’s influential abhorrence of the practice, the charging of a fee as a contribution to the cost of providing a system of justice has become so well-established that it would be sterile to question it. Nonetheless the principle set out in clause 40 should never be forgotten. On the last major anniversary of Magna Carta, the 750th in 1965, it was invoked by the then Lord Chancellor in correspondence with the Finance Ministry to mitigate a proposal to raise fees. In the conclusion to a letter, he simply stated:
‘Magna Carta, whose 750th anniversary we are about to celebrate, provides that we will not sell justice to the people […] I think that in this respect the principle of Magna Carta ought to be maintained.’
11. Clause 40 has therefore been generally understood as permitting the charging of fees, provided that the charging of fees does not fetter or impede access to justice. Therefore the issue for debate has been understood as one of balancing the amount which the general tax revenue ought to contribute (because of the duty of the state to provide access to justice and its interest in ensuring an effective system for justice) and a reasonable level of charge to persons who use the courts. However the starkness of the issues have at times been masked through charging fees for a court process that is often formal but which many have to use. The classic example has been probate fees which, when inheritance taxes were high, made little impact on the administration of an estate, but provided a handsome source of revenue which sustained the court system in England and Wales for many decades.
12. However, much better transparency in state accounting and a tendency to treat access to justice as another public service, combined with increased pressures on public finances, has made this balancing exercise acute. We have seen in England and Wales significant increases in court fees and the introduction in April of this year of mandatory fees to be paid by those convicted of crimes (either by plea or verdict). Whilst the judiciary has taken the view in modern times that modest fees in civil, family and tribunal cases are permissible and in accordance with the provisions of Magna Carta – and has made powerful submissions about the level of fees – it has left the balance as a matter for Parliament to determine.
13. Nonetheless the scale of court fees together with the cost of legal assistance is putting access to justice out of the reach of most, imperilling a core principle of Magna Carta. It is something that the judiciary, working with the executive and legislative branches of the state, needs to address. Overhauling the administration of justice is one way of overcoming these challenges, a topic to which I will return.
14. This concern about access to justice also leads to the next issue: the private provision of justice which some have seen as a possible alternative to the provision of justice by the state through the courts.
The proper scope of the private provision of justice
15. I will first return to Magna Carta. The state has always permitted a degree of the private provision of justice, but made clear that the state has a vital interest in litigation. For example, clause 24 provided: ‘No sheriff, constable, coroners, or other of our bailiffs may hold pleas of our Crown.’
16. This clause concerned the protection of the Crown’s interest in the trying of those accused of serious crime and the reservation of such matters to itself, instead of leaving trials in the hands of local barons – essentially a form of non-royal or private justice. Although the nature of the state’s interest in litigation has changed with time, it must remain a vital interest.
17. Over the centuries, the courts and Parliament have recognised that there are proper reasons why disputes should be resolved other than through the state justice system. For example, in the case of arbitration, it has been long accepted that the role of the courts where the parties have agreed to arbitrate can be restricted to determining points of law and providing enforcement for awards. In recent times, the private provision of alternative dispute resolution (ADR) has again been encouraged as a means for the private resolution of disputes where litigation is too costly or is inappropriate.
18. Even more recently, ombudsman schemes for sectors of business have gained popularity as another means of private dispute resolution, as an alternative to arbitration and ADR. In the UK, the most developed scheme is that for the financial services and insurance sector. This scheme is entirely free to the consumer customers, and has successfully dealt with vast numbers of claims arising out of either one-off disputes or major systemic mis-selling by the sector. Its work is independent and its decisions binding on the business, but not on the consumer who, if dissatisfied, is free to go to court.
19. I mention this scheme by way of example as it has been so successful and is backed by statutory authority. Its success might suggest that ombudsman schemes for different business sectors could provide a proper alternative to the courts as a means of access to justice. Some have even considered whether the enforcement of such decisions can be implemented without recourse to the courts, either through business-wide agreements or through the use of the powers regulators have over industrial sectors.
20. However, there are serious issues as to whether an attempt to provide access to justice by such means is in any way an alternative to the provision of justice by the state through or under the supervision of public courts and tribunals. I will take four by way of example:
i. By and large, the proceedings and processes of regulators or ombudsman are not in public. An essential facet of justice is that it should be open, unless there is good reason for privacy.
ii. The development of the law requires open and public decision making which can be reviewed by an appellate court. Indeed our law cannot develop without it. The provisions of the Arbitration Act 1996 which, since their first enactment in 1979, have permitted opt-out agreements barring recourse to the court and severely curtailing rights of appeal to the court in cases where there is no opt-out have been seen by some as stifling the development of some aspects of English commercial law. It is a danger that must be taken into account more generally – we do need future cases about snails in ginger beer bottles.
iii. Any proper resolution of a dispute has to be by an independent decision maker who is not subject to “industry capture”. Regulatory capture is a well-known phenomenon.
iv. Without the courts and tribunals, through their decisions clarifying and developing the law, the ability of any private dispute resolution mechanism to operate is lost. Such systems depend upon the “shadow of the law” if they are to operate effectively.
21. Therefore, whilst measures that seek to promote compromise over contest so as to avoid unnecessary litigation are to be welcomed, the principles set out in Magna Carta make clear the public interest in the proper provision of justice through the appropriate court. In the modern era, this includes confining private provision of justice to its proper scope and maintaining the role of the courts and tribunals in supervising any such provision.
Strengthening access to justice through the use of modern technology to recast our delivery of justice
22. These matters combined compel us to consider how access to justice can best be made available through the courts. Of critical importance is recasting our system of justice through the use of technology. It is again helpful to consider other provisions of Magna Carta which set out some underlying principles.
The availability of a court
23. It is clear that in 1215, the barons were concerned about access to the courts. This is first reflected in clause 17: ‘Common pleas shall not follow our court but shall be held in some fixed place.‘
24. The clause exemplifies the fact that a state can unnecessarily impose costs on a litigant by its failure to provide readily available courts. The tale of Richard d’ Anesty illustrates the problems caused to those litigating in the royal courts of justice as they were forced to follow the King as he moved around his realm with the royal judges. In brief, Richard was in dispute with his uncle as to rights over land. As it was necessary to follow the King’s Court, resolution of this dispute, whilst successful, took some five years and journeys to Normandy and London via Rome and Lincoln, to name but a few. The remedy that Magna Carta provided was to require a fixed location for the Court of Common Pleas.
25. The second reflection is to be found in clause 18 and 19 which dealt with the demand for local justice. A pledge was made to send royal justices four times a year on assize. As a further nod to the importance of local justice, royal justices would sit with local representatives elected by the county.
26. Underpinning these three clauses is the clear principle that justice must be made available through the most effective means that the circumstance of the age permit. The local court house specially designed for the different types of case was the nineteenth and twentieth century solution; it is the legacy we have inherited and of which we are rightly fond. However, we have to question whether such provision is necessary today when technology allows us to make justice available in a much more cost effective way.
27. We are therefore considering the introduction of Online Dispute Resolution (ODR) through an Online Court. The concept has initially been analysed in a Civil Justice Council Report with the suggestion of a three-stage approach:
i) avoidance (through information and case analysis);
ii) resolution (through online facilitation and mediation); and,
iii) litigation (by an online court and with a reduced need for lawyers).
28. Similar thinking can be seen in Sir Brian Leveson’s report into Efficiency in Criminal Proceedings, which advocates the greater use of telephone and video technologies to facilitate remote hearings in appropriate cases at the pre-trial stage.
29. If this is feasible, and the work being done suggests that it is, then we can move away from the provision of the much beloved local court and its specially designed features for the majority of small cases. Even where cases require court hearings, we are also questioning whether we really need to maintain the number of designated local court houses. Can we not use ordinary rooms in public buildings to maintain local justice, and access to that local justice, whilst reserving the use of permanent, purpose built court buildings to larger towns and cities?
30. Going hand-in-hand with this thinking in relation to the physical availability of courts, we are examining how best to use IT to recast our procedures. Instead of using IT to support pre-existing paper-based procedures, which has largely been the approach in the past, we are seeing how IT and digitisation can be used to change the way in which the justice system operates.
31. For example, the difficulties with the our current form of civil procedure were illustrated in a lecture given by Lord Justice Richards in June this year, in which he described the difficulties that our civil procedure rules committee experiences in its aim of simplifying our rules of court. As is well known, one of my predecessors as Lord Chief Justice, Lord Woolf, through his two Access to Justice Reports in the 1990s, attempted, amongst other things, to simplify those rules and to make the White Book, containing the rules and a detailed commentary, shorter and more user-friendly. The rules and the White Book grow each year in a less than literary echo of Proust or Joyce. Digitisation will hopefully provide the means to achieve true simplification, by using the tools of digitalisation to simplify processes and contain the length of court papers.
Use of persons other than judges
32. Magna Carta provided in clause 45:
‘We will not make justices, constables, sheriffs, or bailiffs who do not know the law of the land and mean to observe it well.‘
33. Most of our systems have developed so that judges, at whatever level, are highly trained specialists. Even in less serious criminal cases, JPs are not allowed to make decisions without the advice of a qualified lawyer. The use of judges to make all decisions comes at an obvious cost.
34. Moreover, our adversarial system and the processes we have developed work best when the parties have lawyers. It was no impediment to access to justice when the state provided legal assistance or the cost of lawyers was modest. That state of affairs has changed.
35. We have therefore begun to create a system which will remove certain judicial work from judges altogether and enable many cases to be dealt with by procedures which can function well, even if the parties do not have lawyers.
36. A recent report by JUSTICE, a UK all-party law reform and human rights organisation which works to strengthen the justice system recommends an increase in the use of “registrars”, who should be legally qualified and suitably trained for making case management and other decisions. The Civil Justice Council Report on ODR to which I have already referred also suggests roles along these lines for persons who are not judges. That report uses the term “facilitators”, with perhaps a slightly reduced remit of work. The JUSTICE report goes further, and points to the possible use of registrars in more than just low-value civil claims. Registrars already exist, to a point, in certain tribunals, and a pilot scheme is in operation in relation to smaller money claims. Clearly their use is an area for development in the coming years.
37. One of the other concepts underpinning both the JUSTICE and the ODR reports is a reduction in the need for legal representation. It is important to remind lawyers at times that the justice system is not there for them (although they unquestionably play an important part) but for the public. Rather than concluding that lawyers are unnecessary, the reports recognise the reality that lawyers are too expensive for many people, notwithstanding attempts to open up the legal services marketplace. The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers.
38. So, again, the potential use of registrars or facilitators in place of judges in the future is something entirely consistent with the principle of clause 45 of Magna Carta. Clause 45 was directed at was that dispute resolution should be in the hands of those who knew the law. That principle is preserved, but in a way that recognises that insisting on the very high level of qualification, skill and experience which our current judiciary provides for all the tasks it currently performs comes at a cost that impedes access to justice. We have to recognise that securing access to justice can be achieved in many cases at much lower cost by using others who know the law and can apply it well.
39. I will conclude by returning to those best known clauses – deciding cases according to law and delivering timely justice – which still carry the force of law today, by virtue of the 1297 enactment.
40. Those principles, together with the principles to be derived from other clauses, looked at through a modern lens, are apposite to the task of refashioning the system of justice so that there is access to the fair, impartial and effective delivery of justice. And, for me, that is a vital part of the legacy of Magna Carta, a legacy that has been exported to justice systems worldwide. For without that, the other rights we shall discuss later today cannot be vindicated.
41. There is, as I have illustrated, a risk that access to justice is not being provided. The cost of accessing the justice system is often prohibitive, be that as a result of reduced spending on legal aid or the rising costs of privately funded legal representation. Many court buildings and many of the processes are outmoded, such that there is an impediment to the timely determination of legal rights and liabilities. All the while, it must be understood that private justice is not an alternative to a public courts and tribunals system.
42. It is therefore necessary to re-cast our justice system to equip it for the present, and to future-proof it so far as possible. Stabilising its financing, making effective use of its buildings, allocating work appropriately, and exploiting the advantages that technology and digitisation can bring are the only way to do this. To do this will be to ensure access to justice in the 21st Century and to safeguard one of the principal legacies of Magna Carta for now and for the future.
43. Thank you very much.
If you have any queries please contact the Judicial Office Communications Team.
September 25, 2015
My Magna Carta Continental Winners Announced
The English-Speaking Union announces the winners of the My Magna Carta Competition and launches its legacy project, inviting a new audience to consider the important constitutional issues of the 21st Century.
In November 2014, the ESU, in partnership with Royal Holloway, University of London, launched My Magna Carta, an international creative writing competition for secondary school students all over the world. Young people were invited to submit their own modern constitutional document that safeguarded the rights, privileges and liberties that matter to them.
Following national and continent judging stages, we are proud to be able to announce the continent winners of both the junior and senior age categories:
• Junior – Kayseka Geerjanan (Mauritius)
• Senior – Mfundo Radebe (South Africa)
• Junior – Xue-Ern Neo (Malaysia)
• Senior – Fathima Nifra (Sri Lanka)
• Junior – Ella McEvoy (Australia)
• Senior – Jack Donnelly (Australia)
• Junior – Marie Georgette Spiteri (Malta)
• Senior – Sofija Jovanovic (Serbia)
• Junior – Valentina Errazuriz (Chile)
• Senior – Rocio Lopez (Chile)
• Junior – Jane Josefowicz (USA)
• Senior – Isabelle McMullen (USA)
• Junior – Laura White (Uxbridge)
• Senior – Alice Wilson (Herefordshire)
*The UK was treated as a separate continent for the purposes of the competition.
The judges were extremely impressed by the quality of the winning entries, with all of the young participants engaging with issues of rights, liberties and privileges. The continent winners have been invited to attend a finals week in October, culminating in a grand final on 15 October 2015, when an international junior and senior winner will be chosen.
The ESU would like to thank The Magna Carta Trust’s 800th Anniversary Committee for its funding of My Magna Carta; enabling the competition and its resources to reach millions of people all over the world. Thanks to a further grant of £3000 from the Committee, we are now pleased to announce a legacy project entitled My Magna Carta: The Constitutional Voice of Tomorrow, which will give the winning entries a further international platform. Utilising the existing My Magna Carta website we will reproduce some of the very best submissions together with short clips from the final event itself, as a way of highlighting key themes discussed by entrants around the globe. Through digital distribution we will allow more young people to access these resources, and develop and discuss their own ideas about some of the most important issues of the 21st Century.
The Magna Carta Trust’s 800th Anniversary Commemoration Committee is charged by the Magna Carta Trust to co-ordinate activities, raise the profile of the anniversary and deliver a number of key national and international aspirations.
Note to Editors: The English-Speaking Union, Patron HM Queen Elizabeth II and President HRH The Princess Royal, was formed out of the Great War with a vision to foster understanding between peoples and communities through the use of the English language. It is both a uniquely qualified and truly contemporary operator in debate training and persuasive speech outreach work in the UK, and beyond. This work is coupled with a worldwide programme of cross-generational education scholarships which places the English-Speaking Union in the vanguard of thinkers, deliverers and facilitators in creating life-changing educational opportunities for people whatever their age and social background.
More information: Michael Pryke [[email protected] telephone +44 (0) 207 529 1550]
August 17, 2015
What Magna Carta and the Race Relations Act mean to us today
‘What Magna Carta and the Race Relations Act mean to us today‘, 29 July 2015, Sir Rabinder Singh, Runnymede Trust Conference.
Click here to download this speech as a .pdf
I am honoured to have been invited to address you today. The Runnymede Trust is the leading organisation in this country dedicated to the promotion of
racial equality. When it was founded in 1968 by Jim Rose and Anthony Lester it took its name from the meadow by the Thames where the first Magna Carta
was sealed in 1215. I am particularly pleased that, among the understandable and widespread commemorations of the 800th anniversary of Magna Carta,
the opportunity has not been lost also to remember that this is the 50th Anniversary of the first Race Relations Act in this country.
At first sight it is not obvious that there is any link between the two. It is well known that Magna Carta was sealed as part of a power struggle between King John and the Barons. They would hardly have been interested in creating an equal society. Furthermore, many of the references in Magna Carta itself are based on distinctions between people depending on their status: the reference to “all free men” clearly excluded those who were villeins. The institution of serfdom was very much alive at that time. And there were provisions in the 1215 version of Magna Carta which on their face discriminated against Jews.
Lord Sumption, who is not only a Justice of the Supreme Court but a distinguished historian, has described the sentiments which often surround
Magna Carta as “high minded tosh.”1 Although it is undoubtedly correct to question whether many of the modern readings of Magna Carta have any basis
in historical fact, it is also important to recall that the mythology surrounding such documents can itself have continuing impact on a society. As another historian, Professor Linda Colley, has observed, there is a “cult and mode of memory” which rests on bad history and which includes Magna Carta as the most important text in stories of liberty.2 The fact is that the phrase Magna Carta still has resonance for ordinary people in this country and they want to know, as Tony Hancock famously asked in 1957: “did she die in vain?”
And this is true not only in this country but around the world. Surely this is why, when Eleanor Roosevelt unveiled the Universal Declaration of Human
Rights in 1948, she said that it might well become an international Magna Carta for all humanity everywhere.
As Article 1 of the Universal Declaration proudly proclaims, all human beings are born free and equal in dignity and rights. Last year I gave a lecture on the development of human rights thought from Magna Carta to the Universal Declaration. I suggested then that we have come a long way since the explicit inequality which was embedded in the original Magna Carta but that nevertheless the lineage of modern human rights thought can be traced back
The respected scholar of human rights Francesca Klug has recently put the point as follows: “Whilst it would therefore be wildly historically inaccurate to bestow universal intentions on the multiple authors of the Charter, the principles established in the few clauses that remain on the statute book were nevertheless loosely enough phrased to allow for increasingly generous interpretations in the centuries that followed. Today a phrase such as ‘to no one will we deny justice’ has come to be understood as the very foundation of our modern, inclusive justice system.”
Nevertheless, it is important to be realistic about the limitations of Magna Carta, even making due allowance for its mythical status. To quote Francesca
Klug again: “This is no doubt in part because its legal remedies have been superseded by a range of statutes and case law that address modern concerns for equality and justice which a medieval document could not be expected to even conceive of. The disputes between a King and his English Barons on a field outside Windsor 800 years ago seem very remote from the struggles of a modern, diverse democracy (currently) composed of four nations and citizens who stem from all parts of the world. The Magna Carta would seem to have nothing to offer if you are disproportionately more likely to be stopped and searched by the police because of the colour of your skin or religious affiliation.”
This brings me on to the Race Relations Act. At common law it was not unlawful to discriminate against a person on racial grounds, for example their
colour. In the Britain of the 1960s it was commonplace for employers, estate agents and landlords to discriminate against people on such grounds. Some
progress had been made by the common law, for example the decision of Birkett J in Constantine v Imperial Hotels Ltd.6 The famous West Indian cricketer Sir Learie Constantine had been discriminated against by a hotel, whose white customers objected to his staying there. In that case the Court was able to find in his favour by relying on the common law duty of innkeepers to serve anyone who came to stay at a hotel unless it was for just cause. Nevertheless, it was not racial discrimination as such which was the legal basis of the cause of action in that case. There was no duty at common law not to discriminate against a person on racial grounds when it came to such aspects of life as employment, education and housing.
It was against that background, and also in the international context of the civil rights movement, in the USA in particular, that the Race Relations Act
was born in 1965. Just the year before the US Congress had passed the Civil Rights Act. However, the Race Relations Act in this country was a weaker
piece of legislation and certainly much weaker than what was to follow.
The 1965 Act was limited in its scope; limited as to who could take action under it; and limited in respect of the remedies which could be granted by the
The Race Relations Act 1965 prohibited discrimination on the grounds of colour, race, or ethnic or national origins. At that time it did not cover nationality. Subsequent case law confirmed that “national origins” did not include the concept of nationality.
Furthermore, the 1965 Act did not cover areas which would now be familiar to us, such as housing or employment. Although the Act applied to “places of
public resort”, including hotels and restaurants, it did not apply to private boarding houses. It did not even apply to shops. The prohibited acts of
discrimination included refusing to serve a person, and unreasonable delay in serving them or overcharging them.
A body known as the Race Relations Board was set up to monitor the work of local conciliation committees. In cases where discrimination continued the
matter was to be referred to the Law Officers, who could apply for an injunction from the court. It was made clear that no criminal liability was
created under the Act.
The background against which the 1965 Act was passed included the Bristol Bus Boycott. In 1955 the Transport and General Workers Union (TGWU) in
Bristol had voted against having black and Asian workers at the Bristol Omnibus Company, which then operated a colour bar until 1963. The bar only came to an end as result of the Bristol Bus Boycott. One of the organisers Ealing LBC v Race Relations Board  of the boycott, Paul Stephenson, is reported to have said on its 50th anniversary: “Fifty years has taught me that racism never dies – it simply slumbers.”
In 2013 the modern successor to the TGWU (Unite) issued an apology for what had happened earlier.
Later the Race Relations Act was strengthened in 1968 and substantially extended in 1976. By now nationality was included as a prohibited ground of
discrimination. The scope of the Act included employment, education and goods and services. That Act extended the concept of discrimination to include indirect discrimination and not only direct discrimination. It created individual rights and a range of remedies, which could be enforced either in
the County Court or in what is now called the Employment Tribunal.
The Race Relations Act 1976 was perhaps one of the strongest pieces of legislation of its kind in the world and certainly in Europe. It long predated
legislation against racial discrimination in EU law, which did not come until the early part of this century.
However, the Act still did not cover discrimination by public authorities in the exercise of their public functions. Following the report by Sir William
MacPherson into the investigation by the Metropolitan Police of the murder of Stephen Lawrence, Parliament enacted the Race Relations (Amendment) Act 2000. One of the main legislative responses to the Stephen Lawrence Inquiry Report was to create a strengthened public sector equality duty, then in section 71 of the 1976 Act. The amended Act also now prohibited racial discrimination by public authorities in the performance of their public functions.
At around the same time the Human Rights Act 1998 came into full force, in October 2000. This gives effect in domestic law to the main rights in the
European Convention on Human Rights, including the right to equal treatment in the enjoyment of other Convention rights, which is set out in Article 14.
By this route we now have a system of law in which even primary legislation can be tested against the standards of the Convention and, in appropriate cases, a declaration of incompatibility can be issued by the higher courts. This is what happened in the so-called “Belmarsh” case, when the House of Lords held that Part 4 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the Convention rights.9 This was in part because it discriminated on the ground of nationality, since the power given to the Secretary of State to authorise the detention of suspected international terrorists applied only to those who were foreign nationals.
As the Runnymede Trust knows better perhaps than any organisation in this country, it is one thing for the law to prohibit racial discrimination. It is
another for society to achieve equality. The social and economic data are well known.
In the last quarter of 2014 the unemployment rate for all people aged 16 plus in the UK was 5.6%. For people of black ethnic background it was 13.9%.
Although for all ethnic groups the unemployment rate was higher among young people aged 16-24, the youth unemployment rate was 16% for white people; 25% for people of Asian ethnic background; and 32% for people of black ethnic background.
The 2011 census figures show that, in England and Wales, the percentage of the population describing themselves as Asian or Asian British was 5.87%.
The percentage describing themselves as Black or Black British was just 2.81%. Contrast that with the figures for the prison population.
The prison population, according to research by the Prison Reform Trust, contains a large proportion of prisoners from a minority ethnic background.
10% of the prison population are black and 6% are Asian. According to the Equality and Human Rights Commission, there is now a greater disproportionality in the number of black people in prison in the UK than in the United States.
Then consider police powers to stop and search. According to the Equality and Human Rights Commission, if you are a black person you are at least six
times as likely to be stopped and searched by the police in England and Wales as a white person. If you are Asian, you are around twice as likely to be
stopped and searched. 10 Research briefing on unemployment by ethnic background to be found on the UK Parliament website.
What about those who exercise the power of the state on behalf of the public? Although there had been members of Parliament from minority ethnic backgrounds historically going back to the 19th century, in the postwar period they only started to become elected to Parliament in 1987, when four MPs
were elected. That represented 0.6% of the membership of the House of Commons. That figure has now increased to 42 MPs in the House of Commons elected in May this year, representing 6.6%.
When it comes to judicial appointments, the picture is mixed. The proportion of BAME judges at lower levels of the judiciary and amongst fee paid judges,
for example Deputy District Judges and Tribunal Members, is much closer to the proportion of BAME communities in the population generally than it is at
more senior levels of the judiciary.
Does any of this matter? On one level not, because judges put aside their backgrounds and opinions when they come to a case, and decide it on the facts
and the law. Yet on another level, according to a report in 2012 by Alan Paterson and Chris Paterson, it does matter, particularly in the perception society has of its judges.11 The authors of that report suggest that “the concept that the institutional legitimacy of the judiciary as a branch of government is in some way linked to a reflection of the society it serves.” They suggest that the judiciary from the High Court and above might loosely be described as the “‘politically significant judiciary’ – the judges involved in the day to day review of government decision-making.”12 That is a reference to the important role played by judicial review of administrative action, although that role is now increasingly played by the Upper Tribunal and not only the High Court. It is also worth noting in this context that the power to make a declaration of incompatibility under section 4 of the Human Rights Act is confined to the High Court and above.
Even at the time when I started at the Bar in 1989, it was in theory possible for barristers’ chambers and their clerks to discriminate, both in the
recruitment of members of chambers and in the allocation of work. This is because the Race Relations Act at that time did not extend to barristers. This
was changed by the Courts and Legal Services Act 1990.
Changing the law does not make society automatically fair and does not make all parts of life more diverse. That has more to do with structural features of our society, in particular social and economic factors. The prohibition of racial discrimination does not necessarily lead to diversity in all parts of life, for example in certain professions and occupations. Change can appear to be very slow.
I would suggest that, to understand the nature of our society today, it can be important to recall what was happening 20 years ago or more. Many of the
people appointed to judicial office today, in particular at the more senior levels, were born more than half a century ago. They were at school in the
1960s and 70s, when our education system was completely different from what it is now. For example, hardly anyone today would know what a “direct grant” school was. Yet that is the kind of school I attended 40 years ago.
Many of those who are judges now, like me, were appointed to various offices such as Junior Counsel to the Crown when we were in practice. In 1998 the
Attorney General introduced the modern system for such appointments, in which there is an annual open competition in which every advocate can make an application.
When it comes to judicial appointments themselves the Judicial Appointments Commission was created by the Constitutional Reform Act 2005. It started to run competitions for the High Court bench in 2007. Again all such appointments are made on merit.
So I would suggest that what we are doing as a society now will have an impact on shaping the nature and character of our society for decades to
come. For example the person who will be Lord Chief Justice of England and Wales in another 50 years time is probably a student now. It is unlikely that
we can change things radically overnight. However, what we can do as a society is to take constructive steps now which will have a beneficial effect in
years and decades to come in the future.
It is well-known that the Race Relations Act was never intended to have exclusively legal effect. Such legislation has a symbolic impact and is
designed to educate the public in certain fundamental values of our society. The message was clearly sent out by Parliament that racial discrimination
would not be countenanced in this country and that the principle of equality is fundamental to our society.
As will become apparent at this conference, the Race Relations Act 1965 was a weak and imperfect piece of legislation. Nevertheless, as is often the case in history, what is important about the 1965 Act is that it was the first step on an important journey. That journey has not yet finished. Please note that speeches published on this website reflect the individual judicial office‐holder’s personal views, unless otherwise stated. If you have any queries please contact the Judicial Office Communications Team.
August 3, 2015
Magna Carta Barons found Not Guilty of Treason
Friday 31st July, 2015
The UK Supreme Court.
Three of the world’s top judges this evening found representatives of the Magna Carta barons not guilty of treason, in a special event organised by the UK Supreme Court and the Magna Carta 800th Anniversary Commemoration Committee.
The Mock Trial saw two senior barristers debating whether King John’s actions in the run-up to 1215 justified the terms the barons forced him to agree in the form of Magna Carta, and the extent to which rebellion against the King can be acceptable in the eyes of the law.
The event was witnessed by 800 people in the surroundings of Westminster Hall, in the Palace of Westminster.
The three judges – Lord Neuberger, President of the Supreme Court, Justice Stephen Breyer of the US Supreme Court, and Dame Sian Elias, Chief Justice of New Zealand – left the stage to confer after hearing argument from James Eadie QC for the prosecution and Nathalie Lieven QC for the defence.
Historic witnesses including the Archbishop of Canterbury, Stephen Langton (played by Lord Lisvane) and intermediary William Marshal (played by Lord Judge) also assisted the court with evidence.
Historians suggest there are three types of treason: lèse-majesté, unjustified threatening the King’s life or the betrayal of the realm or the army; proditio, unjustified default of duty which injured the King or any unjustified plotting against the King; and infidelitas, unjustified violation of an oath of fidelity to the King.
Lord Neuberger concluded two concurring judgments by Justice Breyer and Dame Sian sparing the barons from a terrible fate. He said: “In relation to each type of treason, it is necessary to show that the action complained of was ‘unjustified’. For the reasons given so eloquently and clearly by my two colleagues, I would hold that, in all the circumstances, the prosecution has failed to show that the defendants’ actions were unjustified. Accordingly, I, too, would acquit Baron Fitzwalter and the other 24 defendants of the charge of the treason.”
Commenting on the decision, Sir Robert Worcester, Chairman of the Magna Carta Anniversary Committee, said: “This decision was far from inevitable, but just goes to show how the bravery and determination of those barons eight hundred years ago rings down the centuries as a justified act of rebellion. Those of us living today in democracies which take the Rule of Law seriously are reaping the benefits of the barons’ bold demonstration against King John.
“This was a thrilling event and I am so pleased that the judges have vindicated the men who took considerable risks to secure freedoms we still enjoy today.”
Professor David Carpenter, who played Baron FitzWalter and served as a historical advisor for the event, said: “It was a close run thing. We saw two excellent advocates pitted against each other over a series of fundamental questions which still have resonance today. I agree that the barons should have treated John with more respect. Had they not humiliated him after Runnymede, the country might have been spared the subsequent civil war. On the other hand, I think the verdict broadly supporting Magna Carta is absolutely right. It would have been right then and it is right now.”
Clive Anderson, who played King John, said: “I am sure King John would have been astonished and possibly enraged by this verdict, and would be considering what further steps he could take to deal with the Judges and the Barons who defied his authority”.
A video of the proceedings will be freely available to view on the UK Supreme Court website from early next week.
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.
July 28, 2015
Programme revealed for star-studded Lincoln Magna Carta Festival 800
The Lincolnite, Tuesday 28th July 2015.
Click here to read the article as it originally appeared.
With just one month to go until a Magna Carta festival featuring a host of celebrities, international artists and human rights activists kicks off in Lincoln, a full programme has been revealed.
Festival 800 runs from August 28 until September 6, demonstrating how Magna Carta’s focus on liberty, justice and freedom of speech have shaped today’s society.
The festival will be launched with the unveiling of a giant Magna Carta inspired sand sculpture by artists Remy and Paul Hoggard at Lincoln Castle.
A packed programme of events features a range of world-rennowned artists including Billy Bragg, David Starkey, the Levellers, Shappi Khorsandi, YouTube sensation Alfie Deyes, musician James Rhodes and Poet Laureate Dame Carol Ann Duffy, DBE, FRSL.
Information on the full lineup is now available on the Festival 800 website and in a special booklet from venues and shops across the region.
Set to be held in venues across Lincoln, including Lincoln Castle, The Collection, Lincoln Drill Hall and LPAC, events are set to be exciting, personal and fit for all the family.
People will have the chance to hear inspirational stories of personal strength and courage.
The family of Rosa Parks is making the trip from Detroit to talk about their ‘Auntie Rosa’ who is seen as the ‘mother’ of the US civil rights movement.
Eva Clarke, one of the youngest survivors of the Holocaust will also be sharing her amazing story of survival.
Also ‘Listen to the Banned’ will bring together musicians from across the world who have faced censorship to share their stories and music freely.
One of the hottest acts on the bill, Youtube sensation Alfie Deyes’ book signing at the Drill Hall.
Tickets are now on sale and are expected to sell out fast. Alfie’s Pointless Blog is followed 4 million people.
As well as its main programme of events, Festival 800 will also be partnering with the annual Steam Punk Festival, the Children’s Festival of History and Hartsholme Country Park Magna Carta Trail, all of which take place at the end of August and beginning of September.
Festival 800 has been organised by cultural solutions UK on behalf of Lincolnshire County Council and supported by the National Lottery through Arts Council England.
David Lambert, festival director, said: “Festival 800 will examine, celebrate and at times challenge freedom of speech and expression within a 21st century context.
“The diverse programme is a true credit to everyone that has been working hard behind the scenes and there is something for everyone to enjoy on the programme and we can’t wait to see what public reaction will be now that all the events have been announced.”
Executive Member for Culture and Heritage at Lincolnshire County Council, Councillor Nick Worth added: “Thousands of people have already taken part in this year’s Magna Carta 800 celebrations, creating a real buzz around the city.
“Festival 800 is another chance to join in, and, with such an eclectic line-up, there’s something for all tastes. Make sure you’re a part of this historic moment.”
July 23, 2015
Mark Carney: Magna Carta and the Bank of England
16 July, ‘From Lincoln to Lothbury: Magna Carta and the Bank of England’, Lincoln Cathedral. Mark Carney, Governor of the Bank of England, Speaker.
The lecture below was part of the Lincoln Magna Carta Lecture Series:
Click here to read the lecture at the bankofengland.co.uk.
A burst of inflation. A crisis in the public finances. Public sector bailouts. Infighting in Europe. Not eight years ago, but eight hundred. That was the economic context for the striking of Magna Carta.
To many today, Magna Carta is a document of profound, almost mythical, significance. It is seen as the cornerstone of the United Kingdom’s constitutional arrangements and as a blueprint for the constitutions of many other nations, including the United States. It is credited with establishing the foundations of parliamentary democracy, creating a framework for the rule of law, protecting individual liberty, defending the rights of the innocent, and limiting the role of the State.
It is undoubtedly true that Magna Carta – or more correctly the idea of Magna Carta – has played a central role in British political development over the centuries, not least as a banner under which those seeking liberty from oppression have rallied. But many modern scholars argue that its significance, in and of itself, has been overstated. They characterise Magna Carta as a pragmatic political document that was a product of its time, including the difficult economic circumstances that then prevailed.
As usual with historical arguments, the answer lies somewhere in between. In what follows, I will spend a few moments on the pragmatic element not only because it plays to my comparative advantage as an economist but also because it ultimately underscores the foundational character of the document itself. The enduring legacy of Magna Carta is how its strictures on unconstrained power are reflected in our systems of political and economic governance.
I will conclude that both the constitutional and pragmatic perspectives are relevant to modern central banking and the current conduct of monetary policy. Specifically, the costs of inflation were among the key economic catalysts of Magna Carta, and its core constitutional legacy – namely the importance of delegated authority, with clear lines of public accountability – is at the heart of the Bank of England’s institutional arrangements. In the spirit of Magna Carta, the Bank of England has been given a great responsibility: to deliver monetary stability for the good of the people of the United Kingdom. Our goal, the 2 per cent inflation target, is set by the Government, and we operate under constrained discretion in its pursuit.
1. The economic and political context: Where did Magna Carta come from?
The political background is one of nearly constant conflict both within the dysfunctional ‘English’ monarchical family, as well as with France over control of Normandy and the rest of Henry II’s continental empire.
The England of the 1200s was far from a unitary state. Most matters were administered by local barons, with the King acting as an arbiter in the event of a dispute. The relationship between local (baronial) and central (monarchical) authority was much less deferential, and much more arms-length, than it is today. Indeed, the early Plantagenet Kings of England spent most of their time living at home in Normandy or Anjou, allowing the English barons a considerable degree of autonomy. It was only after King John lost Normandy to the French in 1204 that the King resided full-time in England, breathing down the necks of the barons, who did not much like the closer observation of their activities, and the eyeing of their stockpiles of silver that this proximity entailed.
The relationship between the barons and King John broke down in part because of unsustainable public finances, with John imposing an intolerably heavy and arbitrary tax burden in order to pay for royal extravagance, infighting, and wars with the French. The royal judicial system, whose tendrils extended ever deeper into the barons’ lives, was used to extort cash and as an instrument of royal control, rather than to ensure ‘justice’. What lay behind such unsustainable public finances?
First, and most obviously, the need to pay for constant military protection for the Normandy estates created what modern-day macroeconomists would think of as an enormous structural deficit. If John had let his expulsion from the continent be the end of the matter this financial burden would have extinguished itself. But he did not. His folly was a series of vain attempts to re-conquer Normandy, efforts which finally ended on the eve of Magna Carta.
Second, the monarchic finances had taken a colossal hit in 1193 because of the need to fund a gigantic public sector bailout. Richard I had managed to get himself caught in Germany on his way back from the Holy Land and was held to ransom for £66,000 in silver. Being ‘Too Big To Jail’, the equivalent of two to three times annual crown income was needed to bail him out. In comparison, the government’s peak cash support to UK banks in 2007-2010 amounted to a trifling one-quarter of annual UK government revenues.
For an excellent summary, see Vincent, N (2012), Magna Carta: a very short introduction, Oxford University Press. His allies were finally defeated in 1214 at the Battle of Bouvines, which ended the 1202-1214 Anglo-French War. This would have been bad enough on its own. What was even worse was that it had come only five years after the collection of the ‘Saladin Tithe’, a windfall tax of a similar amount, in order to pay for a campaign to wrestle Jerusalem out of the hands of Salahuddin Ayubi, who had captured it in 1187. That cost the barons one-tenth of all their revenues and movable property.
Third, the need to raise additional cash for the public finances was made much more problematic by the strain of inflation, which accelerated in the early years of the 13th century. The problem was that a large proportion of regular crown income came in the form of ‘farms’, which were fixed rental payments for leases to use the King’s land for agriculture. These farms were fixed by custom in nominal terms, whereas the King’s expenditures were not. The King’s finances were unhedged.
In fairness to the monarchy, there was not an enormous amount that could be done about this. There was obviously no CPI(H) to which the leasehold rents could be indexed. The UK’s statistical challenges have a long history. The preferred way of hedging the risk was to kick the leaseholders off the land, and bring it into direct demesne management. This is what the barons themselves had been doing with their own land holdings. By taking it into demesne control, instead of receiving a fixed nominal rent, the lord of the manor could take receipt of the real output of the land, which could be consumed, traded, or sold for silver at the going spot
price. The consequence was that the richer the baron, the more land he had to exploit, and the greater his potential profits.
The effect was to create a massively wealthy elite of oligarchs, now breaking free both of the middling ranks of the gentry at one end, and of the hard-pressed King (or public sector) at the other. In all of this, the option of demesne management was infeasible for the King, likely because it would have involved destabilising relations with the administrative class of ‘sheriffs’ and other royal officials upon whom the King’s political stability depended.
Causes of the inflation
Forget royal infighting, wars or the whiff of revolution, it is inflation that really sets the pulses of central bankers racing. And for good reason because closer inspection suggests that inflation may have been a significant catalyst to Magna Carta.
Latimer (2001) suggests that the inflation was concentrated in the first six years or so of the thirteenth century. See Latimer, P (2001), “The English inflation of 1180-1220 reconsidered”, Past and Present, No. 171, pages 3-29. Harvey, P. D. A., (1973), “The English inflation of 1180-1220”, Past and Present, No. 61, pages 3-30.
Given the countless other abuses of authority that were going on at the time, one wonders why it was so problematic for the rents
simply to be ‘renegotiated’ periodically. In part, custom dictated that this was not the done thing. In part, the problem lay with the ‘sheriffs’ in each of England’s counties. They were responsible for collecting the fixed farms from the King’s assets. In normal years, they made an enormous profit, paying only a small fixed farm to the King, yet raking in a great deal more in terms of the real income of the counties. They were accustomed to keeping this surplus. Any attempt to reform this system, by reducing the imbalance between real income and fixed farm threatened to destabilise relations between the King and the vitally significant administrative class of sheriffs and other royal officials upon whom the King’s political stability depended. As a result, the Kings’ preference was to find other ways of raising the cash.
Historians estimate that prices were rising sharply in the early 1200s. The prices of agricultural goods, including wheat and oxen, probably doubled in that period. Evidence suggests that prices of linen, wax, lead and even palfreys – the Toyota Prius of medieval horses – were also rising rapidly. Wages were rising as well – and to a greater extent than could have just been the consequence of medieval real-wage resistance. King John was paying his knights almost three times as much as Henry II (even though they weren’t as productive on the battlefield). The daily rate for foot-soldiers had doubled. And limited evidence suggests the wages of skilled labourers on the crown estates probably increased by a similar proportion.
With pay growth approaching 20% a year, wages really were fizzing! The underlying causes of this inflation are debated among historians, but the most convincing argument is that the inflation was a monetary one, albeit with a twist. Not surprisingly, the quantitative information on the thirteenth century money supply is of very poor quality, imputed, as it has been, from archaeological finds of cash hoards.11
Latimer notes that “…between the middle of the twelfth century and the middle of the thirteenth century there was an enormous increase in the quantity of silver coins in England.” As well as the possibility of a general increase in the European silver supply (especially with the opening up of the Harz silver mines in eastern Germany), it is likely that silver inflows to England in particular were boosted as the counterpart to a sizeable private trade surplus – probably resulting, especially, from the success of the wool trade with Flanders. Over several decades, these silver inflows were likely to have much more than offset the ‘public sector deficit’ as silver leaked out to pay for the protection of Normandy as well as the occasional trip to the Holy Land. As a result, the balance of payments was probably in surplus for years, with the consequent increase in the silver money supply going unsterilised. Even to a thirteenth century Englishman, global monetary conditions mattered. Would Britain’s constitutional history have been different had King John lamented: A Central Bank! A Central Bank! My Kingdom for a Central Bank!?
He needed one because other factors reinforced monetary developments, including the usual suspect – financial innovation. Specifically, developments in the common law made land an increasingly liquid asset, and therefore one capable for the first time of being used as a store of wealth. This set a medieval financial accelerator in train (about 750 years before Ben Bernanke coined the term) by providing an alternative to storing one’s wealth in silver coin (prone to being whisked away by the King). This led to a reduction in the demand for silver money balances. An increase in money velocity would have followed and with it, all else being equal, price inflation until the transactions demand for silver had risen sufficiently to equal its supply. At the very least, the existence of an alternative store of wealth provided an environment in which money velocity could take off, were it to be nudged in that direction. One possible nudge was the anticipation of the re-coinage of 1204.14 Re-coinages were good for the King
because he benefitted from the seigniorage of the re-minting fee. They were bad for cash holders both because of the re-minting fee and because they had to exchange their clipped coins for what they were actually worth, rather than their face value (a medieval haircut – some of which were appalling). Consequently, there was a strong incentive not to be the one holding the old-issue coins when the music stopped.
So to sum up: a fiscal squeeze exacerbated by accelerating inflation, combined with monarchical ambition and incompetence to stretch and then break relations with the barons.
2. Constitutional significance
In that context, Magna Carta was a desperate (and probably disingenuous) attempt at a peace treaty that failed almost immediately.
Brokered by the Church, and issued by King John in June 1215, the Charter sought to placate the disgruntled barons. It is doubtful that John ever intended to uphold his side of the bargain, with all the constraints on his authority that this implied. Indeed, within a few months of its agreement, by the end of August 1215, John had convinced Pope Innocent III to annul the Charter on the grounds that it had been issued under duress.16 The 1215 Magna Carta was never enacted, and England slipped into the First
Charters of this type were not uncommon at that time. It had been fairly routine, in fact, for English kings to attempt to curry favour with the nobles upon whom the stability of their realm depended by rubbishing the reputations of their predecessors and issuing ‘coronation charters’ that demonstrated how virtuous and peace-loving they were by comparison. It was also fairly routine for kings to renege on the promises in those charters, creating fertile ground to begin the cycle anew. What was novel about Magna Carta was that: (a) it was longer and more detailed than its predecessors; and (b) it was issued not at John’s coronation, but under compulsion from a true political opposition, sixteen years into his reign and evidentially too late to serve its purpose. This brings a second observation. Obnoxious and tyrannical as he might have been, King John was not solely to blame for the aristocratic discontent that led to Magna Carta. His predecessors had reneged on their promises, mismanaged the realm and imperilled its finances. John’s administrative and military incompetence were merely the straws that broke the camel’s back.
If Magna Carta was such a product of its time, how did it become to be so venerated? And once we cut through the legend, what is its significance for economic governance today? The revisionist interpretation of Magna Carta as a timeless statement of natural rights and liberties became imprinted onto the minds of the English-speaking world only in the 17th century. In large part, this was due to
the work of Edward Coke. As well as being an enormously influential jurist, Coke was also the author of popular English legal textbooks that exported his views around the world. Coke resurrected the long-forgotten Magna Carta from 400 years of obscurity by appealing to its spirit in order to resist the absolutist tendencies of the Stuart Kings James I and his son Charles I – themselves inspired by the continental European model of monarchic divine-right. The Charter, Coke argued, could trace its lineage from an ancient constitution that harked back not just to the time of pre-Norman King Edward the Confessor, but to King Arthur himself (!): an ancient constitution that was now being imperilled – and with it the Englishman’s rightful way of life – by the tyrannical behaviour of the Stuarts. Despite the efforts of Coke and others, Charles I’s rejection of all enterprise to constrain his authority led to the English Civil War and to the king’s beheading in 1649. Meanwhile, Coke’s unstoppable Magna Carta redux had been set in motion. In contradiction to their behaviour at home, James and Charles had been busily granting royal charters promising the liberties of Englishmen to the American colonists. Coke himself had been involved in the drafting of the first charter of the Virginia Company in 1606, and similar English liberties were extended in the charters of Massachusetts, Maryland, Connecticut, Rhode Island and Carolina over the next sixty years. Some have argued that references to Magna Carta, however irrelevant its provisions might by then have been, were used as a way of ‘drumming up’ New World settlers. To this day, 25 US States have extracts from Magna Carta on their statute books; a further 17 have the full text. Goodness knows how the latter intend to enforce the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” (Clause 33). Of course, sometimes American extraterritoriality literally knows no bounds.
Coke’s romantic resurrection of Magna Carta transformed it into part of the backdrop to the American Revolution, with his influence clearly evident in the drafting of the US Constitution.
We have seen how the economic forces and political developments of the time played a crucial part in the mounting hostilities between King John and the barons that led to Magna Carta and First Barons’ War. Given that background, it is not as shocking as it first seems that Magna Carta is very largely taken up with the parochial interests of the rich. It is dominated by three basic themes: taxes; abuses of the ‘judicial system’ with the aim of raising revenue; and the protection of the barons’ mercantile interests. Given how irrelevant those specific concerns now seem, it is hardly surprising that almost all of the Charter’s
clauses that survived the 1225 re-issue (and therefore made it into the law in the first place) have since been repealed. In fact, only four clauses of the original 66 remain. These stand out as different in character from the others. They are much more general, universal and timeless. They are:
– Clause 1: Freedom for the Church.
– Clause 13: Protection for the ‘ancient liberties’ of the City of London.
– Clause 39: No wrongful imprisonment. Perhaps the most famous clause. “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
judgment of his equals or by the law of the land.”
– Clause 40: Justice is not for sale.
Added to that, the spirit of Clause 12 of the 1215 Magna Carta (dropped from all later reissues), that “no ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent…”, is clearly what would later become ‘no taxation without representation’: to establish a council (the embryonic embodiment of what would later become Parliament) to agree whatever new taxes the King might demand.
Whatever their purpose at the time, the more universal clauses that remain on the statute book certainly resonate today. They in effect encompass the idea of the rule of law and of due process as a means to ensure justice. It is tempting, therefore, to think of these clauses as being the enduring legacy of Magna Carta, while at the same time allowing ourselves to patronise the juxtaposition of these apparently fundamental principles alongside so much antiquated gibberish about fish-weirs, the obligation to construct
bridges, and the theft of wood for building castles.
This would, I think, be a mistake. The specificity of the clauses animates the general principles. It is because they are detailed and targeted at the concerns of the time that they are a genuine attempt to place a boundary on the authority of the King, rather than relying on vague platitudes. Magna Carta was nowhere near the first attempt to encapsulate ideas of justice and good government, nor was it the last. Indeed, it was a spectacularly unsuccessful attempt – and it was anyway concerned only with
the interests of a very small segment of society. But, largely because King John’s heirs were forced into a tight corner and therefore obliged to reissue the charter again and again after 1215 (in 1216, 1217, 1225, 1234, 1253, 1265, 1297 and 1300, to cite only the more famous reissues), it is Magna Carta that has become the icon of the principle that the exercise of authority requires permission from those subject to that authority – and that, once granted, this permission can just as easily be withdrawn. At its most idealised, Magna Carta makes clear that power derives from the people and constrains the authority of the state. The state can in turn devolve power – to regions – and to independent bodies. But these bodies can never forget from where their power came or to whom they are responsible. Their authority is constrained to that necessary to pursue specific objectives and they are accountable to the people for their performance.
3. Monetary policy outlook
The Bank’s current Monetary Policy framework embodies these principles. It wasn’t always the case. The Bank of England was brought into public ownership in 1946. As former Governor Eddie George remarked, for the half century that followed “the Bank operated under legislation which, remarkably, did not attempt to define our objectives or functions.” They were, instead, “assumed to carry over from [the Bank’s] earlier long history.” In that regard, the Bank’s ‘constitution’ resembled that of the United Kingdom more broadly, comprising a rich history of law, principle and convention.
Even the ‘fish weirs’ clause (33) can be read, in hindsight, as a protection both of the public good (in Roman law terms, res publica) and of the freedom of navigation: the same principle for the which the English entered into the Seven Years War of 1756-63, whose costs, in turn, brought about the American Revolution of 1776.
All changed with the passing of the Bank of England Act in 1998, which made specific “provision about the constitution, regulation, financial arrangements and functions of the Bank.” The Act brought great clarity to the Bank’s responsibilities and granted independence to the Bank for the operation of monetary policy. In delegating authority to an independent body in this way, the Act ensured the Bank would operate under what Mervyn King described as ‘constrained’ rather than ‘unfettered’ discretion. The Bank would be accountable to Parliament for operating the instruments of monetary policy to achieve the objectives of monetary policy,
which would be determined by the Government.
The operational independence of the Bank of England is an example of power flowing from the people via Parliament within carefully circumscribed limits. Independence in turn demands accountability in order that the Bank commands the legitimacy it needs to fulfil its mission. By publishing its analysis, giving testimony, and delivering speeches, the Bank explains how it is exercising its powers to achieve its clearly defined policy Remits.
To illustrate these points, I will conclude with some reflections on monetary policy. Our objective, given to us by Parliament, is to maintain price stability and, subject to that, to support the economic policy of Her Majesty’s Government, including its objectives for growth and employment. Our Remit builds in important accountability and transparency mechanisms. One of which is the requirement for the Governor to write an open letter to the Chancellor if inflation moves away from its 2 per cent target by more than one percentage point.
I am in the middle of a likely sequence of such open letters – I have another one due next month – on account of the record low inflation the UK is experiencing this year, currently at zero per cent. Such letters must explain, among other things, why inflation has deviated from target and what policy actions the Monetary Policy Committee (MPC) is taking in response.
The ‘why’ is straightforward. The bulk of the shortfall of inflation below target can be explained by the sharp fall in the prices of commodities and other imported goods since last year. Of these, the single most important factor has been the steep drop in energy prices globally. The rise in the value of sterling has also played an important role in lowering non-energy import prices, which have fallen over the past twelve months. The sum total of these effects has been to drag inflation below target by around
1½ percentage points. This temporary period of below-target inflation has provided a welcome boost to real household income.
Inflation looking ahead
The MPC’s intention is to return inflation to target in a sustainable manner within two years. That means setting Bank Rate to eliminate the remaining slack in the economy, bringing about the sustained increase in costs necessary to achieve overall inflation of 2%.
I expect that this will involve raising Bank Rate over the next three years from its current all-time low of ½ per cent. The need for Bank Rate to rise reflects the momentum in the economy and a gradual firming of underlying inflationary pressures – a firming that will become more apparent as the effects of past commodity price falls drop out of the annual inflation rate around the end of the year. It also reflects the lags in monetary policy, given that the peak impact on inflation of a given adjustment in interest rates is likely to materialise around 18-24 months after the change.
As the economy evolves, different factors will become worthy of particular attention in informing the timing, pace and degree of likely Bank Rate increases. At the current juncture, three stand out. First are the prospects that sustained momentum in economic activity will wring out any remaining slack. This will require sustained growth above its past average of around 0.6 per cent per quarter.
Even though the current recovery has been the slowest since the Great Depression, taking around 1½ years longer to regain lost ground than it did following the recession of the 1930s, the signs are encouraging. Looking through the blip in the first quarter, the economy has now been growing above trend for a year and unemployment has fallen sharply over the past two. Consumer confidence is around its highest level for over a decade. Businesses investment intentions are solid. Momentum in the housing market is showing
signs of returning. Survey data point to continued momentum in real activity over the remainder of this year.
To be sure, the international risks to the growth outlook remain. The situation in Greece is fluid, and the on-going slowdown in China could prove more significant. But on balance we can expect the global economy to proceed at a solid, not spectacular, pace.
Second, domestic costs need to continue to firm. After a period of particularly weak wage growth, which reflected a marked expansion in labour supply that is now largely absorbed, wage growth is picking up.
Based on average quarterly GDP growth since 1993. The impact of Buy to Let changes will be examined in August Inflation Report. In our May projections, the MPC expected PPP-weighted worth growth of 3 ¼ per cent in 2015 and 3 ¾ per cent in 2016 and 2017, just shy of the pre-crisis average of around 4 per cent.
I discussed labour supply developments in the UK in detail last autumn. (See Carney, M (2014), Speech to the Trades Union Congress
Annual Conference, 9th September 2014.)
The recent growth in wages has been stronger than we had expected in May, though most of the upside news was in bonuses, which are a less reliable guide to firms’ future labour costs. At a minimum, when taken together with survey indicators that continue to point to solid pay growth for new recruits, recent data give welcome reassurance that the risks associated with a deflationary mindset in the labour market have likely fallen significantly.
Further positive wage developments should be supported by a continued tightening in the labour market. Job-to-job flows remain around post-crisis highs and the ratio of vacancies to unemployment is now back to its pre-crisis average. However, what matters for inflation is not wage growth in isolation but wage growth relative to productivity. Put simply, firms are less likely to raise their prices if higher wages reflect more output per hour worked. Along with faster wage growth, there have been signs of faster productivity growth since the turn of the year. This may well mean firms’ unit labour costs have not picked up quite to the degree we had expected in our May Inflation Report. It’s too early to be definitive. Weighing past disappointments and recent indications of a pick-up, it is prudent to recognise that two-sided risks to productivity growth remain. What is clear is that to return inflation to target, growth in labour costs must pick up further from their current rate of less than one per cent. The extent needed depends on what is happening to other costs. In the decade prior to the crisis, labour costs grew by around 2½ per cent each year on average, with wages and salaries growing at around 4¾ per cent and productivity at 2¼ per cent. Inflation averaged 2 per cent, however, in part because import prices rose only by around ¼ per cent each year at the same time. The possibility that history might repeat itself points to a third important consideration: the need to monitor developments in firms’ costs other than labour. The sum of these is evident in so-called ‘core’ inflation, which are measures of prices that strip out the most volatile determinants of inflation, like energy prices, revealing more persistent trends. In an open economy like the United Kingdom’s, those factors include import prices, which are affected by movements in the value of sterling, and which, on past experience, cantake a considerable time to pass through to core inflation.
Unlike regular pay, bonuses are closer in spirit to dividend payments, being state-contingent disbursements of profits. That
observation may imply bonus payments are a useful cyclical indicator, although interpreting the data is potentially complicated by
changes in taxes that shift the incentive to pay bonuses over time. Accounting for the mis-measurement of clothing and footwear prices, which existed until 2010 and biased measured annual CPI inflation downwards by around 0.4 percentage points. See Bank of England (2011), Inflation Report, February, box on page 39. 28 One way to illustrate the impact of import prices is to consider measures of core inflation adjusted for import intensity. These measures suggest that the current rate of core inflation is being dragged down by import prices by around 1 percentage point. That is a sizeable effect, and reflects, in part, changes in the value of sterling. The core measure referred to here is CPI inflation excluding food, energy, education, alcohol, tobacco and VAT, and the measure adjusted for import prices weights each component of the core index by the inverse of its import intensity.
Not only are the effects sizeable, but, on past experience, they are potentially protracted. The impact of sterling’s 25% depreciation following the onset of the financial crisis on import prices was one factor that contributed to high inflation throughout 2008-12. The potential for these effects to be persistent highlights their relevance at the policy horizon.
Over the past few years, core inflation has been particularly subdued, and it remains less than one per cent. We need to see increases in core inflation to have a reasonable expectation that, in the absence of further shocks, overall CPI inflation will return to 2 per cent within the MPC’s stated objective of two years.
Delivering the growth in activity, the rise in domestic costs and the firming in core inflation measures necessary to return inflation to target requires monetary policy to be set appropriately both now and prospectively. In this regard, one concern has been the constraint imposed on monetary policy by the effective lower bound on policy rates.
In my view, with the healing of the financial sector and the lessening of some of the headwinds facing the economy, that concern has become less pressing with the passage of time. As I made clear in my first open letter in February, were downside risks to inflation to materialise the MPC could decide either to expand the Asset Purchase Facility or to cut Bank Rate further towards zero from its current level of ½ per cent.29 In the current circumstances there is no need to wait to raise rates because of a risk management approach and run the risk of inflation overshooting target.
At the same time, the timing and pace of prospective interest rate increases need to be put into perspective. Headwinds to growth and inflation remain. Growth in the parts of the global economy that matter most to the UK is running ¾ percentage points below its historic average. Sterling has appreciated around 18 per cent over the past two years and around 7 per cent since the turn of the year. This will exert a drag on inflation both through lowering import costs and by lowering world demand for UK goods. UK fiscal policy is about to tighten significantly. The average annual reduction in the cyclically-adjusted budget deficit is projected by the
OBR to increase from around ½ per cent of GDP over the past two years to around 1 per cent of GDP over the next two – and the IMF expects the UK to undergo the largest fiscal adjustment of any major advanced economy over the next five years.
Taken together, these factors suggest that the ‘equilibrium’ real rate of interest – the rate needed to keep the economy operating at potential and inflation on target – which was sharply negative during the crisis, will continue to be lower than on average in the past. It also seems likely that the equilibrium interest rate will move only slowly back up towards historically more ‘normal’ levels. Everything else equal, that suggests a prospective tightening cycle that, once it starts, will be longer and shallower than those of the past. In other words, we expect Bank Rate increases to be gradual, and limited to a level below past averages.
What does that actually mean?
To paraphrase one of my predecessors at the Bank of Canada, Gerry Bouey, we didn’t abandon the lower bound; the lower bound
abandoned us. (See Office for Budget Responsibility (2015), Economic and Fiscal Outlook, July; and IMF (2015), World Economic Outlook.)
The Bank of England is around half a millennium younger than Magna Carta. To put the limited and gradual expectation in historical context, short term interest rates have averaged around 4½ per cent since around the Bank’s inception three centuries ago, the same average as during the pre-crisis period when inflation was at target. The average pace of tightening since the adoption of inflation targeting in 1992 was around 50 basis points per quarter.
It would not seem unreasonable to me to expect that once normalisation begins, interest rate increases would proceed slowly and rise to a level in the medium term that is perhaps about half as high as historical averages. In my view, the decision as to when to start such a process of adjustment will likely come into sharper relief around the turn of this year.
That said, the path is much more important than the precise timing of the first rate increase. And I am conscious of several important considerations which mean the actual path almost certainly will not be mechanical, linear or pre-determined. First and foremost, shocks to the economy could easily adjust the timing and magnitude of interest rate increases. Second, the largest cumulative tightening in the UK since inflation targeting was adopted was 1 ½ percentage points, compared to an average cycle of 3 percentage points for the US Federal Reserve over the same period. This likely reflects in part the greater sensitivity of
UK household balances sheets in the medium term to floating interest rates, something that could be particularly relevant in our still heavily indebted post-crisis economy. Over a half of UK mortgagors would pay higher rates in a year’s time, and close to three-quarters of mortgagors in two years’ time, were interest rates to evolve according to current market rate expectations. That is in stark contrast to the US, where even over a two-year period, less than 10 per cent mortgages would be affected directly by a change in rates. We will learn more about the importance of these sensitivities as interest rates increase. Third, developments in
the exchange rate have been important for UK inflation and activity, and in particular we have experienced persistent exchange rate pass-through to headline inflation. This risk is particularly relevant at present when the monetary policy stance of our largest trading partner is diverging with ours. Most fundamentally, there are broader macroeconomic considerations, particularly the UK’s large external imbalances. With the largest current account deficit in the advanced world, the right policy mix leans towards
tighter fiscal, more accommodative monetary and tighter macroprudential policies.
Given these considerations, the MPC will have to feel its way as it goes, monitoring a wide range of indicators and adjusting the pace and degree of Bank Rate as it learns about the effects of higher interest rates on the economy. There is, in fact, a wide distribution of possible outcomes around any expected path for Bank Rate, reflecting the inevitability that the economy will be buffeted by shocks and that monetary policy will have to adjust accordingly.
After all, as the story of Magna Carta shows, history rarely proceeds in a straight line… why should monetary
July 21, 2015
Mock trial to mark 800th anniversary of Magna Carta
Monday 20th July
Click here to read the full article.
A mock trial of barons and bishops will be held in the Palace of Westminster to mark the 800th anniversary of the Magna Carta.
TV presenter and comedy writer Clive Anderson will play a leading role alongside a number of top legal figures.
The “trial” will be held in front of Lord Neuberger, President of the Supreme Court, Justice Stephen Breyer of the US Supreme Court, and Dame Sian Elias, Chief Justice of New Zealand.
Lord Neuberger said: “Judges never usually comment before a case, but in this instance I think I can safely make an exception.
“We will be deciding whether, setting aside the global impact of some of the ideas embedded in Magna Carta, the barons’ actions in 1215 could be justified in law.
“We can’t promise a polished theatrical performance, but we do hope to offer a creative and interesting way of retelling the great Magna Carta story that encourages people to think about the battle of wills and principles that lay behind this world famous treaty.”
The event has been organised by the Magna Carta 800th Anniversary Commemoration Committee and the UK Supreme Court.
It will take place on Friday July 31 at Westminster Hall in the Palace of Westminster.
The “verdict” will be published on the Supreme Court website.
June 17, 2015
Magna Carta changed the world, David Cameron tells anniversary event
BBC News, Monday 15th June, 2015
Click here to read the original article.
Magna Carta went on to change the world, Prime Minister David Cameron has said, at an ceremony in Surrey marking the 800th anniversary of the document that heralded modern democracy.
The event at Runnymede, where King John sealed the original accord in 1215, was attended by the Queen and other royals.
The Duke of Cambridge unveiled a commemorative art work at the site.
The Charter first protected the rights and freedoms of society and established that the king was subject to the law.
The Duke of Edinburgh and the Princess Royal also attended the ceremony, along with the Archbishop of Canterbury, senior judges, US Attorney General Loretta Lynch and members of the American Bar Association, which erected a memorial to the charter at Runnymede in the 1950s.
Magna Carta originated as a peace treaty between King John and a group of rebellious barons.
Its influence can be seen in other documents across the world including the UN Universal Declaration of Human Rights, and the US Constitution and Bill of Rights.
Speaking at the Magna Carta Memorial, Mr Cameron said the document had inspired different generations and countries.
He said it had had altered forever “the balance of power between the governed and the government”.
“Why do people set such store by Magna Carta? Because they look to history. They see how the great charter shaped the world, for the best part of a millennium, helping to promote arguments for justice and for freedom.”
He also alluded to the government’s plans to replace the Human Rights Act with a British bill of rights, amid its concerns about rulings by the European Court of Human Rights and their application to the UK.
Mr Cameron said in his speech: “It falls to us in this generation to restore the reputation of those rights… It is our duty to safeguard the legacy, the idea, the momentous achievement of those barons.”
The Archbishop of Canterbury, the Most Reverend Justin Welby, said the document had “set the bar high for all of us today”.
In his address, he reminded the audience how his medieval predecessor Archbishop Stephen Langton played an important role as a mediator in the writing of the Magna Carta.
He also said the Church had failed to support the fight for social justice in the past.
“From the support for enclosures to the opposition to the Great Reform Act, to the toleration of all sorts of abuse, with humility, we recognise these failings,” he said.
Lord Dyson, Master of the Rolls and chairman of the Magna Carta Trust, said the Magna Carta was “a symbol of democracy, justice, human rights and perhaps above all the rule of law for the whole world”.
Lord Dyson, the second most senior judge in England and Wales, said: “A few clauses of Magna Carta are still part of our law, including famously the provision that no free man shall be taken or imprisoned except by the lawful judgment of his peers or by the law of the land; and to no-one will we sell, to no-one will we deny or delay right or justice.”
The art installation unveiled by Prince William, called The Jurors, is inspired by the 39th clause of Magna Carta, which gives the right to a jury trial. Artist Hew Locke said it was a “great honour” to be chosen to produce the piece.
Princess Anne rededicated the US memorial, saying Magna Carta “provides us with one of our most basic doctrines – that no person is above the law.
“In recent history and even today we see in many parts of the world that power without the rule of law can lead to human suffering of terrible proportions. But it takes all of us to stand up for these principles.”
A replica of Magna Carta began its journey down the Thames on Saturday as part of the commemorations. The Royal Barge Gloriana led 200 boats from Hurley in Berkshire to Runnymede.
There are just four known copies of the original Magna Carta in existence today, from an estimated 13 that were made. Two are held by the British Library, with Salisbury Cathedral and Lincoln Cathedral holding the others.
This article was originally published with images and further analysis. Click here to read the article as it originally appeared in full.
In Pictures: Magna Carta’s 800th anniversary – BBC News
BBC News, Monday 15th June, 2015
Click here to view the original article.
The BBC featured a series of excellent photos of events at Magna Carta Day, which took place on 15th June, 2015 at Runnymede.
June 14, 2015
British royals return to Runnymede where Magna Carta sealed 800 years ago
Reuters UK, 12th June 2015.
By Michael Holden.
Click here to read the original article.
Queen Elizabeth will return on Monday to the setting where 800 years ago one of her predecessors accepted the Magna Carta, the English document that put limits on the power of the crown for the first time and laid the foundation for modern freedoms.
The Magna Carta, Latin for “Great Charter”, was ratified by King John of England in June 1215, at Runnymede, about 20 miles west of London, after an uprising by his barons. It established certain rights of the English people and placed the monarch under the rule of law.
Not only does it form the bedrock of Britain’s constitutional freedoms, it was the basis for the U.S. Bill of Rights, the U.S. Declaration of Independence and the Universal Declaration of Human Rights. Three of its 63 clauses remain on Britain’s statute book.
“The relevance of the Magna Carta in the 21st century is that it is the foundation of liberty,” said Robert Worcester, chairman of the Magna Carta 800th Committee.
The queen, who is Patron of the Magna Carta Trust, will attend an official ceremony at Runnymede on Monday to commemorate the anniversary. So will other members of the royal family, including her grandson, Prince William, who is second in line for the throne.
A new art installation will be opened and the American Bar Association’s Magna Carta Memorial, which was erected in 1957, will be re-dedicated.
The Magna Carta came into being during a period of great political upheaval in England. Conflict had erupted among King John, his nobles and the English church.
In essence a peace deal, it was sealed by John on June 19, 1215, following five days of negotiation with his barons. The most famous and significant of its clauses were 39 and 40, which stated that not even the monarch was above the law.
They read: “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 judgment of his equals or by the law of the land.
“To no one will we sell, to no one deny or delay right or justice.”
Originally known as “the charter of Runnymede”, it was declared invalid shortly afterwards by the Pope. Civil war broke out between the barons and John, who has a reputation as one of England’s nastiest and cruellest kings, portrayed as the villain in numerous films about legendary outlaw Robin Hood.
It only became known as the Magna Carta two years later, when it was reissued by John’s son Henry III. Versions of the charter were then re-released regularly by or on behalf of succeeding English monarchs.
Four original copies of the document, written on a single sheet of parchment about the size of A3 paper, still exist.
An original copy from 1297 sold for more than $21 million eight years ago in New York, when auction house Sotheby’s described it as “the most important document in the world”.
But historians say the long-term impact of Magna Carta was far from the intention of the barons who forced the document on John, and it was by accident that it became so significant.
Researchers who have carried out a three-year study said it appeared that the church, rather than royal officials, was responsible for its publication and preservation.
“Bizarrely enough, Magna Carta is the product of a situation far closer to that which elsewhere in today’s world we might associate with the enemies of modern liberal democracy, with Sharia law, or with those systems in which church and state are indistinguishable,” said Professor Nicholas Vincent.
“It is often said to be about democracy, about ‘freedom’ or liberal values. It says nothing whatsoever of these. But it does assert a principle, due process under law, that is absolutely crucial in distinguishing tyranny from those parts of the world where there is hope of justice and fair trial.”
(Editing by Larry King)
King John: the most evil monarch in Britain’s history
The Telegraph, Sunday 14th June
By Marc Morris.
Click here to read the original article.
Tomorrow, you can hardly have failed to notice, marks the 800th anniversary of Magna Carta, the document famously issued by King John at Runnymede on June 15, 1215. Most people are understandably a little hazy about the charter’s contents (it runs to 63 clauses and over 4,000 words). But they are aware that it was a “good thing” – a significant step in the direction of the liberties we enjoy today.
At the same time, most people think of John himself as a “bad king”, not least because he crops up as the villain in the tales of Robin Hood. One academic recently described him on Radio 4 as “an absolute rotter”; another, less constrained, has summed him up as “a s—”.
How was it, then, that the bad king left us something so remarkably good in Magna Carta? Is it the case, some historians have asked, that we have King John all wrong? That he was actually not as bad as legend makes out?
The answer to this is an emphatic “No!” John was one of the worst kings – arguably the worst king – ever to sit on England’s throne. “A very bad man,” in the words of one contemporary chronicler, “brim-full of evil qualities.” Despite occasional attempts to rehabilitate him, his reputation among academics remains extremely poor.
John’s offences are almost too numerous to list. In the first place, he was treacherous: when his older brother, Richard the Lionheart, was away on crusade, John attempted to seize the throne by plotting with the king of France, Philip Augustus, prompting contemporaries to damn him as “a mad-headed youth” and “nature’s enemy”. He was also lecherous: several nobles are reported to have taken up arms against him because he had forced himself on their wives and daughters.
Most of all, John was shockingly cruel. In a chivalrous age, when aristocrats spared their enemies, capturing them rather than killing them, John preferred to do away with people by grisly means. On one occasion, for example, he ordered 22 captive knights to be taken to Corfe Castle in Dorset and starved to death. Another time he starved to death the wife and son of his former friend, William de Briouze. In 1203 he arranged the murder of his own nephew and rival for power, Arthur of Brittany.
John might have got away with such nefarious acts had he not also been politically incompetent. At the start of his reign in 1199, he inherited the greatest dominion in Europe — not just England and large parts of Wales and Ireland, but also the whole western half of France: Normandy, Brittany, Anjou and Aquitaine. Yet within five years, he had lost almost all these continental territories to Philip Augustus. Contemporaries put this down to a lack of boldness on John’s part, calling him “Soft-sword”, and he did indeed lack the necessary martial skill that his brother Richard had possessed in spades. “No man may trust him,” sang the troubadour poet Bertran de Born, “for his heart is soft and cowardly.”
King John’s loss of his continental inheritance was deeply shameful, and he was determined to win it back. To raise the massive armies and fleets this enterprise would require, he wrung unprecedented sums of money from England. Taxes were suddenly demanded on an almost annual basis. Nobles were charged gargantuan sums to inherit their lands. Royal justices imposed exorbitant fines for trifling offences. The lands of the Church were seized, and the Jews were imprisoned and tortured until they agreed to pay up. John’s reign saw the greatest financial exploitation of England since the Norman Conquest.
But it was all for nothing. When the king finally launched his long-planned continental campaign in 1214, it was a disaster. John, true to form, shied away from battle when challenged by French forces, and his allies in the north were defeated in a decisive clash with Philip Augustus. He returned to England that autumn with his treasury empty and his dreams of re-conquest in tatters.
With their tyrannical ruler over a barrel, his subjects demanded reform. John dodged their demands for six months, until in May 1215 they came out in open rebellion and seized London. With his capital held against him, the king was forced to negotiate, and obliged to make concessions when he met his critics the following month at Runnymede.
Such is the general background that led to Magna Carta, a charge-sheet aimed squarely at King John and his many acts of misgovernment. The king did not issue it willingly, but under pressure from his opponents and in the hope of buying time. As soon as the meeting at Runnymede had broken up, John wrote to the pope complaining that the charter had been exacted under duress, and the Pope obligingly declared it invalid. Within a few weeks both sides were again at war.
King John did not survive for much longer. Worn out by the exhaustion of fighting a losing war, he contracted dysentery in October 1216 and died a few days later at Newark Castle. Magna Carta, however, was unexpectedly resurrected, reissued by John’s supporters in the name of his nine-year-old son, the newly crowned Henry III. Its most contentious clauses, that allowed the barons to make war on the king should he transgress, were removed, but the bulk of the detail remained.
Today the detail is no longer relevant. What we now celebrate is the famous sentiment in the middle of the charter, which declares that a free man shall not be imprisoned, exiled, deprived of his property or otherwise destroyed simply because it is the king’s will. King John had indulged in precisely that sort of unjust behaviour, and his subjects had called him to account for it. This is how the “bad king” ended up leaving us something so good.
Marc Morris is the author of King John: Treachery, Tyranny and the Road to Magna Carta
Magna Carta’s 800th Anniversary Is Celebrated
Sky News, 14th June 2015.
By Ian Woods, Sky News Correspondent
Click here to read the original article.
Two days of national celebrations are under way to commemorate Magna Carta – the failed treaty between a tyrannical king and his rebellious barons which turned into a decisive moment for English democracy and justice.
Also known as the Great Charter, it was agreed in June 1215, but within weeks it was torn up and the country was plunged into civil war.
Despite this, many of the principles in the charter survived and became law – with the language adopted in democracies around the world.
Today, a statue of Her Majesty Queen Elizabeth will be unveiled on the site of the treaty negotiations at Runnymede on the banks of the River Thames. And tomorrow, the Queen, members of her family and the Prime Minister will attend an event on the site.
Her predecessor, King John, is regarded as one of Britain’s worst monarchs, and it was his dispute with the landowning aristocracy which formed the background to the creation of Magna Carta. The barons forced him to accept new laws and a limitation on his power.
There are four copies of the charter still in existence – one each in Lincoln and Salisbury Cathedrals, and two in the British Library.
The curator of the Library’s exhibit, Dr Claire Breay, told Sky News: “The most important thing about Magna Carta is that it established the principle of the rule of law.
“No free man shall be seized or imprisoned or stripped of his rights, or outlawed or exiled, except by the judgement of his equals or by the law of the land. And that clause is really at the heart of Magna Carta’s fame today.”
Those who negotiated the treaty would be astonished at how its reputation has survived eight centuries, because it was annulled after only 10 weeks.
The Pope ruled that King John had been forced to sign it under duress. Yet in the years afterwards, the language in the charter was revised and reintroduced and became part of the cornerstone of English law.
“If the barons looked at how we were celebrating it they’d be quite amused,” says human rights barrister John Cooper QC.
He equates Magna Carta to scoring an early goal in a football match. It wasn’t decisive, but it shaped what followed. And he argues that some of the rights envisaged by the charter, such as trial by jury, are under threat.
While David Cameron will take part in the anniversary events, he’s also advocated the abolition of the modern Human Rights Act, and withdrawing Britain from the obligations of the European Convention on Human Rights.
His former attorney general Dominic Grieve, who’s been heavily involved in Magna Carta events, disagrees with him.
“There is something that we need to learn from the charter, which is that if you want other people to respect rights, you yourself have got to respect those rights,” he said.
“I happen to believe that although it’s not perfect, both the European Convention and the Human Rights Act are working pretty well.”
It made us free: Melvyn Bragg on Magna Carta
The New Statesman, 12th June 2015
Written by Melvyn Bragg.
Click here to read the original article.
Parliamentary democracy, trial by jury or habeas corpus – it can be argued that all these flowed from this document.
Is it rather stupid and dangerous to take Magna Carta so much for granted, as many of us seem to do, and to think of this attitude as “very English”? Or would it be better to connect it with the present as resolutely as possible, to show the distance travelled in these past 800 years, the achievements despite the setbacks, its uniqueness? Perhaps to take our history too much for granted can be a way of diminishing both the past and the present, especially in this case.
At a recent public meeting about Magna Carta, a member of the platform panel, a well-known public intellectual, leaned forward and to a packed room pronounced with a world-weary confidence: “The fact is that Magna Carta was a squalid little deal.” A few sentences later he added: “Moreover, it did not mention women.” It is difficult to think of a more politically correct, less historically accurate and more impoverished view of history than this, and yet I was the only one who (publicly) protested.
David Carpenter, who has just finished writing a 600-page book on Magna Carta, said that it asserts “for the first time in world history a hugely important constitutional principle of the foundation of liberty, which is that the ruler is subject to the law”.
King John, who sealed (but did not sign; there is no evidence that he could write) Magna Carta appears to have been as the contemporary Benedictine monk Matthew Paris described him: “Foul as it is, hell itself is made fouler by the presence of John.” It has proved impossible to launder King John’s reputation. The barons and earls, the archbishop and bishops, men to a man, stopped a tyrant in his tracks; and after many close escapes since then the Big Charter helped create civilised society, and its journey goes on.
The charter spoke through the king to God and to the liberties of the Church. It enhanced the liberties of London, which the earls and barons had just captured. It bundled together a package of laws, most of which are of their time and have fallen off the page. Sadly for some, it said nothing about the rights of women, the welfare state, the trade unions or the euro.
Nor did it say anything about the right to parliamentary democracy, trial by jury or habeas corpus. But it can be argued that all these flowed from and were triggered by this document. And not only in this country, but as time went on, most powerfully in America, Australia, Canada, New Zealand and as a foundation stone in the constitution of India and elsewhere. After the Second World War, the UN set up the Universal Declaration of Human Rights, which Eleanor Roosevelt called a “Magna Carta for all mankind”.
Magna Carta has 63 clauses in abbreviated Latin. Two of them that are still on the statute book, numbers 39 and 40, could be said to have changed the way in which the free world has grown. “No free man shall be taken, or imprisoned, or disseised [his lands taken away], or outlawed, or exiled, or in any way ruined; nor will we go against him nor sin against him except by the lawful judgment of his peers, his equals and by the law of the land.” And, “To no one will we sell, to no one will we refuse or delay right or justice.” These two clauses have so far proved to be indestructible, though often defied. They came to apply to all men and then all women, and have elasticated their earliest purpose to become universal with a legendary, even mythical aura to them.
Soon after the treaty was sealed, King John broke his word. The pope, on his bidding, annulled the charter. This provoked the invasion of England (the first since the Conquest) by the son of the king of France. But after John’s death in 1216 the earls and barons booted out the French invader, rallied round his son and once more the charter was reissued. It went under the statute books in 1225 and was revived in one political crisis after another: 1253, 1267, 1297 . . . From the very beginning it was brandished in the local courts by peasants who saw it as their defence against tyranny.
The great lawyer Sir Edward Coke (1552-1634) brought it face to face with the Tudor and the Stuart autocracies. In the English civil wars its time of greatest influence was seen and branded on the English conscience. Sir William Blackstone took it up in the 18th century. Lord Woolf speaks to China on it today; and in the argument about 42-day detention in 2008, Magna Carta was headlined in some of our newspapers.
Magna Carta has become totemic. It is in the comedy of Tony Hancock, in the poetry of Kipling, never far from the front pages in a constitutional crisis. It was copied out by hand. Four copies are remaining and although one is badly damaged, there is not a blot on any of them. Those two clauses hit a nerve in societies all over the world. They have become sacred tablets.
The monuments at Runnymede, where it was signed, both modest, are funded by American lawyers. It is curious that just up the river at Windsor Castle, which King John made his base during the negotiations, we maintain one of the splendid palaces of monarchy – while downriver the English have erected a narrow road that belts through those meadows where thousands met for the treaty 800 years ago. And there’s an English tea shop. With a small car park.
Magna Carta celebrations begin on River Thames
BBC News, 13th June
Click here to read the original article.
A replica of Magna Carta is being carried down the Thames as part of events to mark its 800th anniversary.
The Royal Barge Gloriana is leading 200 boats from Hurley in Berkshire to Runnymede in Surrey over two days.
Magna Carta was granted by King John on 15 June 1215, establishing that the king was subject to the law rather than being above it.
Twenty-three local people have been chosen as “charter bearers” to relay the document.
The pageant, which started at 09:00 BST, has been organised by Thames Alive, with support from Royal Borough of Windsor and Maidenhead, Runnymede borough and Spelthorne borough councils.
As the copy of Magna Carta is transported downstream, actors will recount its story.
Charter bearers, who live, work or study in one of the three boroughs, will carry the document on board the Royal Shallop Jubilant.
The Queen’s Diamond Jubilee barge, Gloriana, is the flagship of the flotilla.
Five-time Olympic gold medallist rower Sir Steve Redgrave, from Marlow, Buckinghamshire, watched as it passed through his home town.
“It’s the first row barge that has been built for 300 years so it’s pretty spectacular,” he said.
The event will culminate with the unveiling of a 4m (13ft) bronze statue of the Queen at Runnymede Pleasure Grounds on Sunday.
Road closures will be in place during the celebrations in Berkshire and Surrey.
The flotilla is due to arrive at Oakley Court Hotel, Windsor, at 20:00. The replica Magna Carta’s journey will pause overnight before commencing at 09:00 on Sunday.
Principles set out in Magna Carta charted the right to a fair trial and limits on taxation without representation.
It also inspired a number of other documents, including the US Constitution and the Universal Declaration of Human Rights.
How Magna Carta Went Viral
The Smithsonian Mag
By Linda Rodriguez McRobbie
First published 12th June – Click here to read the original article.
In a world before the printing press, how did news of the famous document make the rounds?
In November of last year, a 13th-century copy of Magna Carta went for a drive.
The document—a large, nearly square piece of parchment covered in dense, brownish Latin legalese and bearing a dark green wax seal attached to the bottom with cord—rolled around the City of London in a red and gold horse-drawn coach built for Edward VII. A small camera was fitted to the coach’s ceiling to live-stream the document on its journey. Magna Carta toured London’s financial heart in the company of a Chinese dragon, people in fish costumes riding segways, a Viking ship, a group of Maasai dancers, and Napoleon Bonaparte. It was not, as you might imagine, how a copy of Magna Carta would have traveled in 1215, the year of its first sealing.
The copy’s public appearance was part of the Lord Mayor’s Show, the annual parade celebrating the installation of the Lord Mayor of the City of London in office (incidentally, the first Lord Mayor’s Show also took place in 1215). But the real occasion for the outing was as a reminder that the upcoming year would be an important one: 2015, the 800th anniversary of a document celebrated as the keystone of modern democracy, a symbol of the inalienable rights of humankind and the spiritual ancestor of the United States Constitution and the 1948 Universal Declaration of Human Rights.
To be clear, the copy of Magna Carta that took a drive around the City of London last year dates from 1297, the year it was re-issued and sealed by King Edward I. It is not an “original”; it’s not even based on an original, but instead is a re-issuing of a 1225 version, itself a reissue of a 1217 version, which was again a reissue of a 1216 version. That it is a copy of a copy of a copy speaks to how Magna Carta evolved from the practical resolution of a civil emergency into the totemic enshrinement of liberty that it is today. And it speaks to how Magna Carta went, for lack of a better term, viral.
The story of how Magna Carta was communicated is tied up in how it came to be. King John, one of the great, mustache-twirling villains of British history, and a pack of angry barons, rebels whose main coup was taking control of London, spent June 10 through June 19, 1215 in tense negotiation at the Thames-side meadow of Runnymede. A settlement was reached, and John’s oath to uphold it was given in exchange for the barons’ pledge of allegiance.
This settlement was quickly issued as a royal charter, a proclamation by the king; most of its 63 clauses dealt with grievances about his abuse of feudal custom and detailed actions to curtail it. John, who’d lost a lot of money fighting unsuccessful wars in France, had been using his feudal rights to extort money from his nobles, and when they couldn’t pay, he seized their land and took their family members hostage.
Buried among the stipulations regarding the removal of fish-weirs from the Thames and specifying the rights of wealthy widows were several clauses that would have centuries-long relevance, though no one could have known that at the time. These guaranteed the Church the freedom to handle its business without interference from the throne; that no free man could be imprisoned or outlawed except by the lawful judgment of his equals; and that the right to justice could not be sold, denied or delayed. It wasn’t, as the myth of Magna Carta might imply, the first time that these things were recorded—England had been an established political entity since well before the Norman Conquest in 1066, with laws both customary and written. Rather, Magna Carta represented the first time that they’d been outlined in conjunction with the implicit declaration that the king himself was subject to these laws. Big news—but how, in the absence of a printing press, telegraph, 24-hour news cycle or the Internet, did anyone hear about it?
The answer is murky. What happened at Runnymede is unclear beyond the broad strokes (furious barons in full armor, king in a tight corner), although John’s showdown with his barons probably didn’t include an official Magna Carta document as we might think of it. And it certainly wouldn’t have concluded with him dramatically impressing his seal on anything; this was not a moment for theater, whatever later historians with overheated imaginations might want to believe.
“I think the main thing that the general public will assume that when they go to see Magna Carta is that they think they’re seeing something that was on the isle of Runnymede or that the king signed or sealed and everybody looked, and that is almost certainly not the case,” explained Tessa Webber, a lecturer in palaeography at Cambridge. It is more likely that a draft version of the text hashed out during negotiations, both overt and covert, in the previous weeks and months, was read out to the assembled parties. Once John swore his oath, the 63 clauses would have been pulled together in a charter, not yet called Magna Carta (“Great Charter”), but the “Charter of Liberties”. Who actually wrote the first text is unknown, but some evidence points to the Archbishop of Canterbury, Stephen Langton, one of the architects of the Runnymede negotiations. This text was then copied out in heavily abbreviated Medieval Latin on parchment by trained scribes of the royal chancery, the king’s records and communications office. These “engrossments”, as they’re called, were then affixed with the King’s Great Seal, the physical representation of his authority, and sent out via royal messengers. Simple enough, right?
“When I’m trying to envision what happens in 1215, it’s not like creating one single document. It’s more like sending an email to multiple recipients, and then it gets copied again, or cut and pasted,” said Julian Harrison, co-curator of the British Library’s major exhibition on Magna Carta. Except, this was a message that needed to be copied out by hand by a team of specialists turning around on a tight schedule, that could travel only as fast as a person on a horse could go, and that ultimately might not have even been understood by the very people who needed to enact it. Less simple.
There are four surviving 1215 Magna Cartas, two held by the British Library and one each at Lincoln and Salisbury cathedrals. Each bears the seal date June 15, 1215, although it’s unclear whether they were actually in existence on that day; there was precedent for documents to bear the date they were orally agreed, not the date they were physically sealed. There could have been as many as 41 such copies, one for each shire, or county, and the Cinque Ports, the five ports on the coast of Kent and Sussex. Each of the remaining copies is in a different hand, and each is a different size and shape—one is landscape, two are portrait and one is almost square—written on sheepskin parchment.
Sheepskin was turned into parchment by soaking it in a strong lye solution, making it easier to scrape off the hair and flesh. Then the skin was stretched on a frame to dry under tension, scraped smooth with a crescent-shaped knife called a lunular and trimmed. The individual sheepskin dictates the shape and size of the parchment that results: “You deal with the sheep you’ve got,” says Webber. Given the length of the text—roughly 4,000 words of shorthand Medieval Latin, probably one of the longest documents produced to date—it’s unlikely that a single sheep could have produced more than one Magna Carta.
The ink was made by the same scribe who used it from a combination of water, mineral dust, gum arabic (as a binding agent) and powdered oak-gall, also known as oak-apple. Oak-gall is one of nature’s weirder treasures: When a gall wasp lays its eggs in the bark or on the leaves of an oak tree, the tree forms a smooth ball, like a boil, around the larvae. Inside the ball is tannic acid, which, when in combination with the other ingredients, seems to almost etch into the skin of the parchment. The black ink would have been applied with a quill, a flight feather taken from a goose or a swan. A right-handed scribe held a left wing feather, which curved into the hand; roughly every 10 lines of cramped, spidery scratching, he’d pause to trim the nib with a penknife and dip it into the ink.
Each copy had to be the work of a single scribe, to reduce the opportunity for and appearance of tampering. “You weren’t meant to have any erasures … You weren’t meant to leave any spaces,” Webber explains: Erasures could be construed as signs of forgery, while spaces could leave enough room to squeeze in something unwanted. This is not to say that mistakes weren’t made—the minor variations between the four 1215 Magna Cartas attest to that—but rather that this was precise, hand-cramping, eye-watering work (at least the scribes working on those Magna Cartas would have enjoyed a bit more daylight to work with, being that it was summer).
Once the copies were made, they were each sealed—not signed, which was not a tradition yet and in any case, there is no evidence that John could write—meaning that an impression of the King’s Great Seal was made in a lump of softened beeswax and resin and attached to the bottom of the document by cord. The king himself, however, didn’t do the honors; his Lord Chancellor, the Keeper of the Seal and one of the highest ranking officials in government, would have, or there would have even been yet another person, called a “spigurnel”, to actually apply the seal to the wax. “Royal administration is evolving and getting more complex,” Webber explains. “Titles are quite honorific, and that means you get a package of privileges … but the actual doing of things would have been done by someone less rewarded. This is bureaucracy, basically.” Only one of the four 1215 Magna Cartas still bears King John’s seal, although this copy was badly damaged by a fire in 1731; the wax melted and now resembles an ancient piece of chewed gum.
It’s unknown exactly how long it would have taken to produce a single copy of Magna Carta, but we do know that at least seven copies were ready for dissemination by June 24, 1215—there’s a memo from that date to the effect that two copies were to be delivered to the bishop of Lincoln, one to the bishop of Worcester, and four to the Archbishop of Canterbury’s steward. Another memo indicates that six more copies were sent out on July 22, again to the Archbishop of Canterbury’s steward. The relative haste with which they were produced and sent out gives some clue as to the document’s importance; regular charters could afford to languish a bit.
There was already a fairly robust system of communication between the Crown and the country dating back to at least the 10th century. This was largely in the form of the sealed writ, a kind of dashed-off memo that bore the king’s seal and would be sent off to the shires. Charters, although they were more formal documents, went the same way, carried by royal messengers via “established routes,” says Julia Barrow, director of the University of Leeds’ Institute for Medieval Studies. Any charter, and Magna Carta was no exception, could only travel as fast as the messenger carrying it. At maximum, that’s about 20 to 25 miles a day on horseback—roughly the distance from Runnymede to, say, the Tower of London (then in the hands of the rebel barons). If, as evidence suggests, a messenger changed mounts at staging posts, he could cover as much as 60 to 80 miles a day, and the copies could have traveled to the corners of the kingdom within a week, Barrow says.
Some did, but not all copies would have traveled via royal messenger moving posthaste. In the case of Lincoln Cathedral’s copy, for example, it went with Bishop Hugh of Wells, who had been at Runnymede and who reached Lincoln, a distance of some 140 miles, by June 30, 1215. Harrison is inclined to think that it took rather longer to spread the physical copies around the country: “It’s not instantaneous, it would have been over a period of weeks and months.” More importantly, perhaps, word about what had happened—”which essentially was that John lost,” Barrow says—would have traveled person-to-person probably faster than the physical documents.
However long it took, it seems likely that copies would have been put in the hands of the earls of the shires and bishops in county cathedrals; this is how other writs and royal charters were disseminated, and there’s no reason to believe Magna Carta was an exception. To publicize it, Magna Carta was probably read out at the cathedral and/or a shire court meeting held at a local great hall. (The shire courts, in existence since the Anglo-Saxon kings and made up of the local earl, bishop, and sheriff, were the primary locus of civic justice.) It’s difficult to picture what such a meeting would have looked like, when it would be held, who would be there and how many people from feudal England’s various strata would have attended. But we do know that the charter was probably read out in the vernacular French, Anglo-Norman, that was spoken by the social and political elite of the country—a surprising number of written translations into French from near the time of the sealing survive, including one that appears to have been intended to be read out at the county court of Hampshire.
“It probably would have taken a bit of time, it’s a long document,” says Barrow. Most towns in England boasted a fee-paying school by this time, a marked improvement on the days when the only schools were in monasteries; however, only a small percentage of the population could spare the money or the child labor, so readers remained a relatively small group and mostly male. Among the more likely to be able to read, however, were members of the aristocratic, religious and clerk classes.
Whether those hearing it would have understood what it was enacting in any language, however, is another question—though the document would have been fairly well known, it was probably haphazardly applied. Historian J.C. Holt, in his seminal 1992 analysis of Magna Carta, noted, “On the whole they knew very little of the contents of the Charter and this must have been equally true of those who were required to act on it in 1215. … As news of the settlement at Runnymede spread throughout the land, it can only have loosened the reins of government, encouraged attacks on local officials, tempted men into invading royal rights or resorting to self-help against both Crown and neighbour. The Charter must have started many a local war.”
It’s also unlikely that the “people” in a broader sense would have really learned much about Magna Carta. In one sense, Magna Carta would have only been minimally important to the vast majority of people living in England: “When it talks about ‘free men’, it’s not talking about free men in the modern sense, it’s talking about men at the top echelons of medieval society, because it’s a feudal society,” Harrison says. “In 1215, [Magna Carta] wouldn’t have had a significant bearing on people’s life.” Yet, in another sense, it did. It dealt with the practicalities of financial burden, which, though levied against the highest echelon, was also borne by the lowest; moreover, the civil war that occasioned it marked the first time in more than 40 years that war had touched the English countryside, so people would have cared—but they wouldn’t have cared that much.
Which is just as well, because in reality, John, a notorious oath-breaker, probably never intended to honor Magna Carta. “We kind of think that King John in way never expected people to read it, it was just a way of getting out of a tight political corner. He probably thought the Pope will annul it and he’ll live to fight another day, and it didn’t quite happen that way,” says Harrison. “I think he would have been horrified if he knew we’d be celebrating it today, I really do.”
However important and unprecedented Magna Carta was, its immediate impact was blunted by the fact that, at John’s request, Pope Innocent III issued a papal bull annulling it (and excommunicating the rebels) just 10 weeks after its sealing. He didn’t take much convincing: “The Pope thought it was an abomination,” says Harrison; he was horrified by what he perceived as the overthrow of the natural order of society and the violation of God’s law. That the copies of the charter weren’t destroyed is both something of a mystery and a miracle; after all, this was a failed treaty denounced by the highest power in the land. It’s possible they were just archived in cathedrals and forgotten; it makes sense, then, that three out of four of the surviving copies are confirmed cathedral copies. And as Webber pointed out, churches were the safest places for important archives: “They had stone buildings and cupboards and chests for keeping things safe … they had better resources than the secular institutions; and what religious institutions have is institutional continuity.”
Within just a few months of Runnymede, the barons openly rebelled again, plunging the country into a civil war worse than the one that had resulted in Magna Carta. The document probably would have been forgotten altogether if it hadn’t been for the fact that King John died of dysentery (reportedly after too many peaches and new cider) in October of 1216. John’s 9-year-old son, now King Henry III, was put under the guardianship of the canny knight, William Marshal, the Earl of Pembroke, John’s most loyal ally and one of the architects of the Magna Carta agreement. Marshal, acting as regent for the young king, issued a revised version of Magna Carta in November 1216 in an effort to bring the remaining rebel barons back into the fold and to “bind the kingdom together,” Barrow says. It didn’t entirely work, and Marshal re-issued it yet again, with some more revisions, in 1217. It was after this that the charter became known as Magna Carta.
“The idea of it was too important to be dropped,” explains Barrow. Indeed, Magna Carta’s significance in the legal, political and social landscape of England began to snowball. In 1225, Henry III, acting of his own “free will” but in response to his barons’ demands, sealed a revision of the charter that reduced the number of clauses to 37. This would not be the last time Henry III would use Magna Carta as a bargaining chip, a promise of good government in exchange for fealty: In his 56 years of rule, Henry promised more than 10 times to uphold the Great Charter. In 1265, in the midst of yet another baronial rebellion and under house arrest, Henry III reconfirmed Magna Carta and, crucially for the continued dissemination of the document, ordered that it be read out once a year in shire courts. The Church too played a major role in entrenching Magna Carta in society (not the least because the first clause guaranteed the Church’s freedom). From the 1250s, Magna Carta was being read out regularly in church in Latin, Anglo-Norman and, now, the English of the people; from 1253, anyone who broke any of the Charter’s terms faced excommunication.
Finally, in 1297, Edward I, that steel-fisted tyrant also called Longshanks, faced discontent from his increasingly fractious and financially taxed subjects. His chancellors reissued the 1225 version of the charter with his seal, ordered that it be read twice a year in cathedrals and, most significantly, added it to the Statute Rolls, enshrining it into English law. That any copies of the 1215 Magna Carta survive is even more remarkable given the number of times it was reissued—most copyholders would have destroyed the now meaningless older version when the new one was issued. It’s pure happenstance in some cases that copies were discovered; one probably apocryphal story goes that a copy of Magna Carta, one of those in the British Library, was discovered by a 17th-century London tailor just as he was about to cut it up for pattern-making paper.
Referenced in judicial proceedings as law, appealed to as a standard in political rhetoric, Magna Carta was becoming a kind of totem against the tyranny of the kings, not only for the political elite, but also for the layman. By the close of the 13th century, Magna Carta’s impact had spread well beyond its initial intent as the preservation of the rights of the baronial few (with a few bones thrown to the layfolk), and it was beginning to take on the gloss of the iconic document it became. By the 17th century, it was so deeply entrenched that a proposal to move the meeting of the court known as “The Bench” from its drafty corner of Westminster Hall was met with shocked disapproval from the Chief Justice, on the grounds that moving it even “the distance of an inch” would violate the charter. That reluctance to mess with an almost thoroughly outdated text meant that it wasn’t until the 19th and even 20th century that clauses like number 23—”No vill or man will be forced to build bridges at river banks except those who ought to do so by tradition and law”—were repealed. Now, only three-and-a-half clauses remain on the books.
And yet, everyone loves Magna Carta. Cambridge professor of history Sir Edward Shepherd Creasey noted with some amusement in a pamphlet titled “The Textbook of the Constitution”, “Magna Carta, in particular, is on everybody’s lips but in nobody’s hands; and, though perpetually talked of, is generally talked of in utter ignorance of its contents.” Creasey was writing in 1848, but he could have been speaking at virtually any time since 1215. (And today, it’s literally on lips, or at least the lips of the infants with parents so insufferable as to buy them Magna Carta pacifiers, just one of a bewildering array of Magna Carta-emblazoned tchotchkes.) As a standard of law, it’s not much. But as an idea, “it gets reinvented, and it proves to be highly adaptable,” Harrison says. “And unintentionally, it contains some really key statements that have really resonated over time.” So much so that now, Harrison says one of his colleagues frequently receives emails from people asking whether Magna Carta could help them get out of parking fines.
What traveled in messengers’ bags in 1215, what was read out in cathedrals with nearly the same sanctity as the Bible through the Middle Ages, what became a touchstone of human rights law through the Enlightenment and beyond wasn’t just the words of Magna Carta. It was what people believed they said. In his 1941 inauguration address, President Franklin Delano Roosevelt declared, “The democratic aspiration is no mere recent phase in human history … It was written in Magna Carta.”
Not exactly, but close enough.
Magna Carta: 800 years of reining in power and why it still matters
ABC Sydney, 14th June 2015.
By Linda Mottram.
Click here to view the original article.
Faced with a punitive, confiscating, murdering king, who’s losing territory hand over fist, what is one to do?
Gather your fellow barons, call in the weakened, discredited monarch and get a man of the cloth to preside while you thrash out a peace treaty.
And so they did at Runnymede in the year 1215 in a bid to end the Civil War that had been tearing the place apart under King John, incidentally a man so awful that no king since has had that name.
It was a shaky start; the deal faltered; but others rallied to salvage and reinstate the document, the 1297 version of which is the critical one which came to be the foundation document for legal systems everywhere that derive their laws from England.
And 800 years on, democracies everywhere are marking the occasion and remembering the words at the core of Magna Carta that have served to make our societies what they remain today.
First time monarch agrees to be bound by document
“It was really the first document we associate with the rule of law where in fact you have a monarch in England giving up some of their powers and … putting forward a document which he then seals and agrees to be bound by what that document says,” Malcolm Stuart, vice-president of the Rule of Law Institute of Australia and a member of Magna Carta Australia Committee, said.
“That’s the first time that occurs.
“Prior to that, we’re talking about a king who believed he had divine right, if he woke up in the morning and said he was going to confiscate your property, your property was confiscated or if he said he was going to impose punitive taxes, that’s what occurred,” Mr Stuart told 702 ABC Sydney Mornings.
There is a copy of the 1297 version of Magna Carta at Parliament House in Canberra.
A 1330 edition, that appears to have been a working lawyer’s document, is held at the State Library of New South Wales.
Principles of law under threat in Australia: Institute
But while Magna Carta is echoed in our current political system as well as in documents like the Constitution of the United States, threats to the principles remain.
The Rule of Law Institute said those threats included excessive exercising of powers by the Independent Commission Against Corruption in NSW in the recent treatment of senior crown prosecutor Margaret Cunneen.
The Rule of Law Institute also took issue with the recent suggestion in Australia that a minister might exercise virtually arbitrary power in deciding whether to cancel the citizenship of a dual passport holder deemed to be a terrorist.
“The principle of the rule of law would point to saying no [but instead] have the decision made by an independent judiciary, have a full hearing of it … because that will give confidence in the decision as opposed to the minister making the decision which may simply be reviewed by a judge,” Mr Stuart said.
According to the institute, the principles under threat also include the ideas of the absolute supremacy of the law, the requirement that citizens understand what the law is, that all are equal before the law and that the judiciary is independent and accessible.
Advancing the interests of the rule of law, the institute sends teachers to talk to legal studies students in years 11 and 12 in schools around the country.
And on this significant occasion of Magna Carta’s 800th birthday, perhaps it is best not to dwell on another part of the document that declares a woman cannot give evidence against a man for murder unless the man is her husband.
LiberTeas update: A message from Mr Speaker
Sunday 14th June, 2015
In 2015 the Houses of Parliament, along with the people of the UK, are commemorating two important anniversaries: 750 years since the Simon de Montfort parliament (1265) and 800 years since the sealing of Magna Carta (1215).
Magna Carta embodies principles which have underpinned the establishment of Parliamentary democracy, as well as the legal system, in the UK and around the world. Montfort’s parliament of 1265 has a unique resonance as it built on these principles and included representatives chosen by both the towns and shires – something that ultimately paved the way for the emergence of the House of Commons.
Parliament in the Making is a year-long programme that brings these anniversaries to life. Our ambition is to develop further awareness and understanding of the UK’s democratic heritage and, in doing so, to encourage the public to reflect on our past and to focus on our future. Through this programme we have developed a range of cultural, educational and ceremonial events and activities of which LiberTeas is one.
I am delighted that you are joining us on this unique day, when people all across the UK and in fact, around the world, are stopping to take a moment to celebrate, debate and reflect on their rights and freedoms.
It is a human trait to take things we are used to for granted. When we ponder the question of who to vote for, or how to dress, or what we say and to whom, we seldom stop and think that underpinning our ability to make freely these choices are the hard won liberties of our predecessors. Gathering together, as we are this weekend, to take tea in the name of liberty is in itself a freedom we should not take for granted.
The rights and freedoms that we are celebrating have been achieved with difficulty, often at the cost of much blood and human suffering. They are not, and never will be, perfect. Not everyone will always agree on how liberty in its ideal essence should translate into a practical realisation. However, the history of the world is a lesson that no society, even one apparently secure in its democratic rights, can afford to believe that those rights cannot be taken away, and often with greater ease than the manner in which they were won. However, as we mark the anniversary of the document which started the journey to these rights and freedoms it feels that it has never been more appropriate, however un-British it may be, to congratulate ourselves on the democracy that we have achieved over the past 800 years.
Wishing you all a very enjoyable and meaningful LiberTeas!
Rt Hon John Bercow MP
Speaker of the House of Commons
June 7, 2015
Magna Carta: The troubled journey to an independent judiciary.
The Independent, Sunday 7th June.
Written by Will Gore.
Click here to read the article as it appeared on the independent.co.uk
In popular perception the Middle Ages was a time of lawlessness and cruelty. And to a degree, that characterisation holds true. Crusades abroad, ill-disciplined governance at home, England in the early thirteenth century was not exactly enlightened.
The creation of Magna Carta in 1215 is all the more remarkable against such a backdrop. An unpopular king brought to heel by a written agreement sounds much too good to be true – and it was, in the short-term, with peaceable discussions giving way to civil war within a matter of months.
Nevertheless, the legacy of the charter signed by King John and the barons at Runnymede 800 years ago has been compelling, both in this country and beyond. The original agreement may not have protected rights and freedoms in the detailed way which modern-day myth occasionally suggests, but it undoubtedly set Britain on a road towards non-autocratic government.
In particular, Magna Carta achieved acceptance for two key principles. The first was that regal authority should be limited by – and separated from – the will of the people. In the immediate context of the early 1200s, that meant that taxes could not be raised without the “general consent of the realm” – and for realm read barons and the church. Even so, as a guiding principle, it was crucial.
The second fundamental doctrine was that individuals were entitled to be treated in accordance with the laws of the land and would, when accused of wrongdoing, be judged by their equals. Again, the contemporary impact of this element of Magna Carta – the famed clause 39 – was limited to the minority of British citizens who were “free men”. However, it confirmed the notion of the Rule of Law and the applicability of trial by jury, which had seen its origins during Henry II’s rule in the previous century when the first judges emerged too.
Ultimately, then, Magna Carta was a bulwark against tyranny. For thirteenth century barons it was also a tool for the advance of oligarchy, a means of protecting their role as the advisors to the king – their positions as such having been established informally during the reign of William the Conqueror. Magna Carta certainly did not envisage genuine democratic rights as they are understood today.
It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) Indeed, the continuing acceptance of a formalised and symbiotic relationship between the monarch and his (important) subjects was not without its hiccups – to put things mildly. And the development of regular parliaments in the mid- to late-thirteenth century (and especially their extension to include non-noble representatives) was largely the consequence of discord, rather than harmonious reform.
The security of parliament’s role – separated into two chambers from the mid-14th century – and the independence of the judiciary were largely dependent on the strength or weakness of successive monarchs. Henry VIII’s “great matter” and the subsequent break from Rome have been seen by many historians as the point at which parliamentary power took on a new character, although Tudor monarchs were canny enough to recognise that empowering parliament was a means to legitimising their own authority. Fundamentally, though, the monarch retained a firm grip on the power of the executive veto.
But if the Tudor period, rumbustious as it was, witnessed a new understanding of the need for balance in the relationship between executive, legislature and judiciary, so it was the dramatic failure of the Stuart kings to accept the limitations of their power which ultimately led to the more formal separation of the three arms of state.
The Star Chamber was originally conceived as a kind of supervisory body to oversee the operation of England’s lower courts and consider appeals, as well as to ensure enforcement of the law against those powerful enough to avoid the clutches of local judicial officials. Yet under James I, the Chamber effectively became the king’s private enforcement agency, meting out judgments on moral as well as legal matters. The court was used to suppress dissent and to bypass the necessity of calling parliaments.
The dismissal by James I of Edward Coke, the Chief Justice, for having suggested that the king was subject to the law, rather than the other way round, brought matters to a head. Incensed, Coke dedicated himself to writing The Institutes of the Lawes of England, which emphasised the role of Magna Carta as the basis for the common law and, notably, as having enshrined the independence of the judiciary from monarchical control. Coke subsequently drafted The Petition of Right, an updated Magna Carta, which parliament compelled the new king, Charles I, unhappily to accept. Charles responded by governing without parliament for 11 years and ramping up his persecution of those who opposed him. The English Civil War, which followed, ended with Charles’ execution, convicted by a jury of 120 officials of the highest rank available.
Coke’s assertion of Magna Carta’s formative place in English constitutional history, especially in confirming the independence of the judiciary, has been upheld with remarkable consistency throughout the last 350 years. The Glorious Revolution of 1688 and the subsequent passage of the Bill of Rights, followed a decade later by the Act of Settlement, finally – and for good – ended any pretensions that a monarch might have to absolute rule and cemented the separate functions of crown, parliament and courts.
In recent decades, constitutional changes have further reinforced the separation of state powers (even if the continued existence of the executive within the legislature raises theoretical difficulties). The last Labour government, for instance, ended the legal function of the House of Lords, transferring power to the Supreme Court as the UK’s highest legal authority, and provided for more independence in the appointment of judges.
Yet it is the great irony of Britain’s unwritten constitution that having arguably reached a point of greatest clarity, so it is up for renewed debate. The role of the European Convention on Human Rights, as legislated for by the Human Rights Act here; the existence of the Strasbourg court; clashes between ministers and judicial officials over their respective roles; and ongoing questions over House of Lords reform – not to mention the state of the Union between Scotland and England: all have become major talking points. Magna Carta, which was intended to resolve a specific set of contemporary problems in 1215, has come for many to represent a simpler, more English, representation of rights.
In the final analysis, however, it is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance. To ignore that is to disregard the struggles of those who have endeavoured to ensure respect for the Rule of Law and to maintain the delicate balance between the powers that rule our lives.
June 2, 2015
Magna Carta 800th anniversary marked with commemorative stamps
BBC News, Tuesday 2nd June.
Click here to read the article as it appeared on the BBC.
A special set of commemorative stamps has been issued to mark the 800th anniversary of the Magna Carta.
The six stamps feature text from Magna Carta, and other charters, bills and declarations that have developed the rule of law around the world.
Magna Carta was granted by King John of England on 15 June 1215, establishing that the king was subject to the law rather than being above it.
A “foundation of liberty” postmark will also appear on letters this week.
Principles set out in Magna Carta charted the right to a fair trial, and limits on taxation without representation.
It also inspired a number of other documents, including the US Constitution and the Universal Declaration of Human Rights.
Text from the American Bill of Rights of 1791, the Universal Declaration of Human Rights of 1948, and the 2013 Charter of the Commonwealth are among other texts that feature on the commemorative stamps.
Sir Robert Worcester, chairman of the Magna Carta 800th Committee, said: “The relevance of Magna Carta in the 21st Century is that it is the foundation of liberty.
“I am delighted that Royal Mail has marked this landmark document, and other key bills and declarations it inspired, with these striking stamps. It is fitting that they will be seen by people all around the world.”
Andrew Hammond, director of stamps and collectibles at Royal Mail said the legacy of Magna Carta had been far-reaching.
“The charter’s unique status as a fundamental text, guaranteeing freedom under the law, has been the inspiration for many key charters, bills and declarations which have become milestones in the development of the rule of law throughout history and across the world,” he said.