Magna Carta - is Cameron for or against?

Cameron is right to commemorate one of the foundation stones of modern liberty, but he cannot at the same time continue to undermine it.

Geoffrey Bindman
8 September 2014

Magna Carta, Wikimedia

In June next year we will be commemorating the 800th anniversary of Magna Carta and several events are already being actively prepared, including an exhibition at the British Library. David Cameron has announced that he wants to use the anniversary as an opportunity for every child to learn about “the foundation of all our laws and values”. It is entirely right that this remarkable document should be celebrated. It remains highly relevant to our current situation.

Of course the significance of Magna Carta cannot be understood from a literal reading of a document originally written in Latin in a very different world. Rather, its claim to be the cornerstone of our democracy rests on the acceptance over the intervening centuries of the fundamental principles that underlie some of its provisions. Magna Carta itself has been well described as a “messy constitutional compromise hammered out at Runnymede between King John and the barons.” The barons were the small group of rich landowners whose interests were threatened by the absolute power claimed by the King. The meeting at Runnymede was the barons’ attempt to secure redress for their grievances and a better relationship in the future. The people as a whole played no part in the agreement nor did the barons have any title to represent them. The King was vulnerable to the demands of the barons because he needed their support, financial and otherwise, to pursue military campaigns in France.

Thus most of the 63 chapters of Magna Carta represent specific safeguards for the property claimed by the barons and for their physical security and autonomy in managing their estates and the tenants who lived on them. Few of the chapters are relevant to the modern world.

Yet the moral and legal force of Magna Carta has been the foundation of our commitment to human rights and the rule of law. Not only that: by limiting the power of the monarch in favour of the rights of others, it sowed the seeds of democracy. It shaped the United States Constitution and forms the basis of international human rights law. In 1948 Eleanor Roosevelt, chairing the commission drafting the Universal Declaration of Human Rights, described it as “an international Magna Carta for all mankind”.

The two key provisions are in chapters 39 and 40. They have been translated as follows::

“No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgement of his peers 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.”

Shorn of their archaisms, and giving them a modern context, these are guarantees by the ruling monarch of the rule of law and access to impartial justice. Above all they acknowledge limitations on the absolute power of government in favour of certain inviolable rights. We can see in them the source of to-day’s human rights law, both national and international.

The transition from 1215 to today has been far from smooth. Monarchs after King John repeatedly fought to restore and retain their autocratic powers. In 1621 the great judge and parliamentarian Sir Edward Coke challenged King James: “If my sovereign will not allow me my inheritance, I must fly to Magna Carta and entreat explanation of his majesty. Magna Carta is called the charter of liberty because it maketh free men. When the King says he cannot allow our liberties of right, it strikes at the root. We serve here for thousands and ten thousands.”

Unfortunately, parliament proved an inadequate defender of those liberties. The law of treason was developed not only to protect the monarch from physical harm but in order to suppress dissent and popular pressure for democratic reform. Magna Carta was invoked in the 17th century by those who challenged the absolutist ambitions of Charles the First and later by the Levellers who fell foul of Cromwell’s similar pretensions after the Civil War.

Later, following the death of the second King Charles and the “Glorious Revolution” of 1688, parliamentary supremacy was entrenched in the Bill of Rights, but without an electoral system capable of producing a parliament representative of the people as a whole. Nearly a century later, King George III and his ministers led by William Pitt were so frightened by the prospect of the French Revolution spreading to Britain that they clamped down on the advocates of peaceful constitutional reform. Pitt’s attempt to eliminate them by extending the legal definition of treason to embrace advocacy of universal suffrage failed in 1794, when John Thelwall and his fellow democrats were resoundingly acquitted by a jury. In the following decades however a succession of “gagging” Acts of Parliament and the suspension of habeas corpus came close to destroying our liberties. Universal suffrage remained unachieved until the 20th century. Now democracy, however imperfect in practice, is our acknowledged form of government.

This of course is a potted summary of a long and tortuous history but Magna Carta has remained a beacon of sanity and principle. Its influence survives as the symbolic guarantee of individual human rights for all. More specifically, chapter 39 affirms the right not to suffer arbitrary arrest, detention or ill-treatment without legal authority. The reference to “judgement of his peers” arguably entrenches jury trial, though the modern jury would not have been recognised in the 13th century. Chapter 40 demands equal access to justice, requiring equality of arms and a level playing field as between rich and poor in the judicial system. The late Lord Bingham attached such importance to these two chapters that he says in his book “the Rule of Law”: that they “should be inscribed on the stationery of the Ministry of Justice in place of the rather vapid slogans which their letters now carry.” One might go further and invite the Lord Chancellor to memorise them and repeat them every day before breakfast.

It is heartening that our Prime Minister has attached his authority to the exemplary importance of Magna Carta. What remains difficult to understand is how at the same time his government can pursue policies which are diametrically opposed to its precepts. The diminution of legal aid, for example, is flatly inconsistent with the clear words of chapter 40. Even more disturbing is the paradoxical and irrational threat by Mr. Cameron’s party, if elected to government, to seek the repeal of the Human Rights Act, which is the very embodiment of the principles of Magna Carta. Mr. Cameron is right to celebrate Magna Carta and its values. It makes no sense while doing so to repudiate its current manifestation.

Parliament must not fail again to defend our liberties.

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