Magna Carta - is she still alive?

City of London copy of Magna Carta

Updated 18th June with additional links

Magna Carta is among the most famous documents in the world.  It was on 15th June 1215, at Runnymede near Windsor, that King John reluctantly acceded to certain demands made by various powerful Barons.  The matter did not end there because King John reneged on the agreement and, after John's death, there were various versions of the charter.  In a speech to the Magna Carta Trust, Lord Neuberger (now President of the Supreme Court of the UK)  looked at some of the subsequent history and I need not repeat it here.

Much of the Charter was concerned with aspects of medieval law and, in particular, matters of importance to the powerful - (see charter text).  Most of the charter was repealed in Victorian times.  Today, on the statute book, are the three remaining Articles in the version of the charter dated 1297.  Article I is concerned
with the freedom of the church; Article IX addresses the freedoms of the City of London and certain other places.  Article XXIX is the one most frequently referred to.  Here is the text as it appears on the UK Statute Law database:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by 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 either Justice or Right.

Article XXIX is an assertion that decisions affecting the liberty of individuals or their property are to be determined by legal process and not in some arbitrary manner.  The idea of the "Rule of Law" took hold and it is in Magna Carta that we see the emergence of the view that even those who rule are subject to the law.  In a lecture at Royal Holloway in June 2011, Lady Justice Arden referred to Magna Carta as 'a monumental affirmation of the rule of law.'   Herein is perhaps the spirit of the law as opposed to its mere letter.  As Earl Warren - Chief Justice of the USA (1953-69) stated - 'It is the spirit and not the form of the law that keeps justice alive.'


Historically, there is no doubting that the ideas originating with Magna Carta have been of enormous influence - see, for example, The influence of Magna Carta on other Constitutions.  English constitutional law remains wedded to the notion that government has to obey the law.  Constitutionally, it is the Queen in Parliament which legislates and, at least in legal theory, seems to be free to legislate for anything it wishes though there are some interesting observations about this in Jackson v Attorney-General [2005] UKHL 56.  The interpretation of the law is for the independent judiciary and judicial review remains a vital instrument for ensuring that government adheres to law.

Writing for the Financial Times - The Myth of Magna Carta - David Allen Green argues that 'as law', Magna Carta 'is of little or no practical use.'  'Nobody in modern times seems to have ever relied on it to determine the outcome of a case. It is not “live” in the way the Bill of Rights is in the United States or similar constitutional guarantees in other countries. It is ornamentation, not legislation.'

and later, Mr Green states:

'But perhaps the worst thing is that Magna Carta provides no check in principle to Parliament legislating against the rights of citizens. All that is needed is an act of Parliament, and individuals can be held without trial and refused access to a lawyer. There is no means by which a statute can be disapplied by reason of it breaching Magna Carta.

Magna Carta does not trump the supremacy of Parliament.'

This view sees the continuing existence of Magna Carta as a barrier to developing a mature approach to constitutional rights.

 ' .. our politicians and judges would prefer us to believe in a medieval myth which allows them to do to us what exactly they would do to us anyway.'

This is a view which merits a great deal of respect and, as a statement of where English law now is, I would not seek to challenge it in any way.  My aim is to offer a mere gloss.  It may be that some form of modern British Bill of Rights will eventually emerge though there will be endless debates as to what should and should not be within any such Bill - see the 2012 Report of the Commission on a Bill of Rights.  Meanwhile, there is the European Convention on Human Rights which has force in domestic law subject to the terms of the Human Rights Act 1998.  The Convention is much maligned by some members of the present government and those individuals do not rule out trying to take us out of the Convention system altogether.  Nevertheless, as a statement of fundamental "human rights" it would probably be difficult to better the Convention.  It recognises the value of the individual in a democratic society and insists that a fair balance be sought where different rights come into conflict. It is therefore interesting that most of the Convention rights can be traced back to a document forged in the turbulent years of 13th Century England - Magna Carta !

See also - UK Human Rights blog post by Adam Wagner - Whose Magna Carta is it anyway?

Reading:

Text of Magna Carta

The Master of the Rolls (Lord Dyson MR) - Magna Carta, Religion and the Rule of Law

David Allen Green - FT Blog 16th June 2014 - The Myth of Magna Carta

UK Human Rights Blog - Whose Magna Carta is it anyway?

The Lawyer - Magna Carta - what is there left to celebrate? - discusses the ideological attack by the British government on legal aid and access to justice.  Spare five minutes and watch this powerful film setting out why legal aid is so important to our justice system and for a fairer society.

Lord Neuberger - Speech to the Magna Carta Dinner 17th October 2011

Royal Holloway University of London - Magna Carta series of lectures  and, in particular, Lady Justice Arden Magna Carta and the Judges - Realising the Vision

Constitution UK - Crowdsourcing the UK's constitution - London School of Economics and Political Science

City of London and Magna Carta 

The complete Magna Carta texts