Magna Carta in the modern age
Legal commentator Joshua Rozenberg explores the influence Magna Carta has within the UK’s legal system, and asks what the charter means for us today.
Except it doesn’t mention any of these things — even in translation. Instead, Magna Carta has quite a bit to say about fish weirs and river banks, about taxes and debts. Two months after King John (r.1199-1216) granted the charter to his barons, he had it nullified by the Pope. There were good grounds to do so, since it was extracted from the King by duress. Although Magna Carta was later reissued, only a few sentences remain on the statute book today.
The papal bull annulling Magna Carta
This document, issued by Pope Innocent III on 24 August 1215, quashed the 1215 Magna Carta.View images from this item (1)
Usage terms: Public Domain in most countries other than the UK
We see that from the countless images of King John meeting the barons in 1215, all of them imaginary and most of them wildly anachronistic. We see it in the bags and baubles, the mugs and magnets, sold on the strength of two Latin words. We see it in newspaper cartoons, with David Low warning us in the Evening Standard in 1934 that Oswald Mosley’s ‘Magnissima Carta’ would mean the end of free speech and Peter Brookes telling us in The Times in 2005 that Tony Blair’s anti-terrorism controls left the United Kingdom with no more than a ‘Mini Carta’.
Cartoon entitled 'Magna Carta, Mini Carta' and featuring Tony Blair
This cartoon satirises the Prevention of Terrorism Bill (2005), depicting the then Prime Minister, Tony Blair, holding a ‘Mini Carta’ entitled ‘New Labour and Human Rights’, and inscribed ‘House arrest etc. etc. etc. etc. etc. etc.’.View images from this item (1)
1066 and All That
This satirical book from 1930 is famous for labelling John as a bad king.View images from this item (5)
The symbolism of Magna Carta
Such confusion — iconoclasm, even — is understandable in a nation that puts its trust in people rather than in paper. The British have never codified their constitution because most people think that writing it down would not achieve very much. Magna Carta may vie with the English language itself for the title of Britain’s greatest gift to the world, but its place in the laws of England and Wales is largely symbolic.And yet it is a symbolism that crosses the political spectrum, inspiring fascists and communists, suffragists and environmentalists. Nelson Mandela (1918-2013), speaking from the dock during the Rivonia trial of 1964, expressed his admiration for it. The German-born composer Kurt Weill (1900-50) based a cantata on it. Churchill was advised that a copy of the original charter might reinforce a shared political heritage and secure the support of the United States in World War II.
Nelson Mandela's speech 'I am prepared to die' at the Rivonia trial
Nelson Mandela, put on trial for his life in 1964, declared from the dock his admiration for western democracy, stating that Magna Carta, the Petition of Rights and the Bill of Rights were ‘held in veneration by democrats’ worldwide.View images from this item (15)
Score of The Ballad of Magna Carta
Composed by Kurt Weill and first performed in 1940, The Ballad portrays King John as a deeply unpopular monarch, abandoned by his supporters and compelled to agree to Magna Carta.View images from this item (19)
Cabinet papers proposing that Magna Carta be gifted to the USA, with annotations by Sir Winston Churchill
During WWII, a British memorandum proposed gifting the 1215 Lincoln copy of Magna Carta to the United States. The government believed this could strengthen Anglo-American relations and thus support the war effort.View images from this item (8)
That was not a reference to clause 29 of the first Magna Carta. After its annulment in 1215, that charter was revised and reissued in 1216, 1217 and 1225. It was the 1225 version — much shorter than the original — that was confirmed by Edward I (r.1272-1307) and found its way on to the first Statute Roll in 1297. And most of the 1297 statute was repealed by Parliament at various times between 1828 and 1969.
Magna Carta, 1225
The 1225 version of Magna Carta, freely issued by Henry III in return for a tax granted to him by the whole kingdom, became the definitive version of the text.View images from this item (2)
Usage terms: Public Domain in most countries other than the UK
Magna Carta, 1297
One of the most famous confirmations of Magna Carta was that of King Edward I in 1297, since it was this confirmation that was copied on to the Statute Roll.View images from this item (1)
Repeal of the clauses of Magna Carta in An Act for promoting the Revision of the Statute Law
The most sweeping deletion of Magna Carta’s clauses from the statute book took place in 1863. 17 of the clauses were considered to be obsolete.View images from this item (5)
The modern legal interpretation of Magna Carta
Just three clauses of that statute remain law in England and Wales today. Clause 1 provides that ‘the Church of England shall be free’. Clause 9 promises that ‘the City of London shall have all the old liberties and customs’ that it had before. But the best-known remnant is clause 29. Derived from clauses 39 and 40 of the 1215 charter, it says:
No freeman shall be taken or imprisoned, or 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.
These are fine principles but they do not stand up well to modern principles of statutory interpretation.First, does ‘man’ embrace ‘woman’? Yes, because the Interpretation Act 1978 says that ‘words importing the masculine gender include the feminine’. Next, can anyone who is not a ‘freeman’ claim the rights listed in the first sentence? Historians tell us that freemen were able to marry or go where they pleased, unlike the rural peasantry or serfs who were generally bonded to their land and unable to marry without purchasing their lord’s permission. Fortunately, the Human Rights Act 1998 requires all legislation to be given effect in a way that is compatible with human rights. Courts would be expected to interpret ‘freemen’ as meaning ‘all people’.
Human Rights Act 1998
The purpose of the Human Rights Act was to incorporate into UK law the rights and freedoms guaranteed under the European Convention on Human Rights (1953).View images from this item (1)
Usage terms: Open Government licence
In the United Kingdom, governments would continue to observe the law of the land even if clause 29 of the 1297 statute were repealed. And yet the rule of law is far from universal. In the spring of 2014, almost 800 years after Magna Carta was granted, we saw protestors shot dead by military snipers in Kiev, a city at the very borders of Europe. There are several parts of the world in which opponents of the ruling regime simply ‘disappear’. Their supporters would welcome concessions such as those made by King John in 1215.
The second sentence of chapter 29 was cited by a High Court judge as recently as 2007. Quoting Sir James Holt’s resonant translation (1965) ‘to no one will we sell, to no one will we deny or delay right or justice’, Mr Justice Munby complained about the time the courts had taken to hear a housing claim, expressing the view that ‘the potential delay here amounted to a denial of justice in the sense in which that phrase is used in Magna Carta’. Warming to his theme, Munby said there were ‘some principles that ring down the centuries’. In this respect, he continued, the message of Magna Carta was ‘timeless’.
Is Magna Carta still used in the courts?
A search of the Westlaw UK database reveals that the courts of England and Wales have referred to Magna Carta in around 160 reported judgments over a period of some 450 years: not, perhaps, a particularly large number. And I have not found a single modern English case that was decided on the strength of Magna Carta alone.
Litigants-in-person — non-lawyers — tend to invest Magna Carta with more weight than it can carry. In 2013, a man acquitted of growing cannabis sought compensation from Scottish police and prosecutors for time he had spent on remand. David Watson relied on Magna Carta to support his claim that he was not bound by laws to which he had not consented. A Scottish judge had no difficulty in finding no basis for that claim.These litigants seem to imagine that Magna Carta operates as some sort of restraint on the supremacy of Parliament. It does not. The power of Parliament to legislate as it sees fit dates from the Bill of Rights 1689. It cannot be limited by a statute passed four centuries earlier.
The Bill of Rights
This declaration of 1689, known as the Bill of Rights, stated that it was illegal for the Crown to suspend or dispense with the law, and insisted on due process in criminal trials.View images from this item (3)
‘To no one will we sell … justice’ is another provision that is difficult to apply. Does it mean simply that judges must not take bribes? Nobody would disagree with that. Or does it mean that people who cannot afford lawyers — and even court fees — must be given the funding they need to enforce their rights?
What’s more, ‘judgment of his peers’ does not guarantee trial by jury. Juries, as we now know them, did not exist in 1215 and are used in only a small minority of trials today.Magna Carta is still cited in the courts of the United Kingdom — but often as little more than a historical flourish. Some examples from recent judgments: the importance attributed to personal freedom can be traced back at least to Magna Carta; it has been said from the time of Magna Carta that justice delayed is justice denied; and open justice is one of the oldest principles of English law, going back to before Magna Carta. And here is Lady Justice Arden, giving judgment in 2011. ‘The right to liberty of the person is a fundamental right,’ she said. ‘It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the [European] Convention [on Human Rights].’
Universal Declaration of Human Rights
Written following the atrocities of WWII, the Universal Declaration of Human Rights states that people around the world should be protected by fundamental human rights, regardless of their citizenship, race, gender or beliefs.View images from this item (16)
European Convention for the Protection of Human Rights and Fundamental Freedoms
These articles come from a pan-European treaty (1950) demonstrating a commitment to enforce the freedoms expressed in the Universal Declaration of Human Rights.View images from this item (2)
Magna Carta in the United States
This takes us to lands where Magna Carta is revered rather more than in the country of its birth. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948. Article 9, summarising clause 39 of the 1215 charter, says, ‘No one shall be subjected to arbitrary arrest, detention or exile’.
That, in turn, led directly to the European Convention on Human Rights, which took effect in 1953. Article 5 begins: ‘Everyone has the right to liberty and security of person’. Through the Human Rights Act 1998, article 5 became enforceable against public bodies in the courts of the United Kingdom.
In 1939, when Lincoln Cathedral’s copy of the 1215 charter was put on show at the World Fair in New York, an estimated 14 million people went to see it in just six months. After war broke out, the cathedral’s copy was stranded in the United States, leading to the suggestion that the Americans should be allowed to keep it — or alternatively have it replaced with one of the copies now displayed in the British Library.
It would have been a priceless gift. An American author, writing in 1991, calculated that more than 900 federal and state courts in the United States had cited Magna Carta. In the half-century between 1940 and 1990, the United States Supreme Court had done so in more than sixty cases.More recently, the highest court in the United States had to decide whether foreign prisoners detained by the United States at Guantánamo Bay, Cuba, could seek writs of habeas corpus that might lead to their release. Allowing their appeal in 2008, the court traced that powerful remedy back beyond the United States constitution of 1789 to what the judges regarded as its origin in clause 39 of Magna Carta. ‘Gradually, the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled,’ wrote Justice Kennedy for the majority.
Supreme Court judgement for Boumediene v. Bush relating to detention at Guantánamo Bay
The Supreme Court invoked Magna Carta when deciding whether foreign prisoners could be detained indefinitely in Guantánamo Bay, Cuba.View images from this item (2)
A constitutional instrument
Despite all this, there is more to Magna Carta than words and parchment. It is not just one of the oldest statutes in force. It is, as the United Kingdom Supreme Court noted in January 2014, a constitutional instrument — standing alongside the Petition of Right 1628, the Bill of Rights 1689, the Act of Settlement 1701 and the Act of Union 1707. It was arguable, said the court, that fundamental principles contained in such constitutional instruments were not abrogated by the European Communities Act, which requires courts in the United Kingdom to follow European law.
Lord Judge, a former Lord Chief Justice of England and Wales, summed it up well in 2014.
Whatever we may find in the written text, Magna Carta has come down to us through the centuries as the most important single document in the development of constitutional and legal freedom and adherence to the rule of law in the common law world, eventually followed in and hugely influencing the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And, as Lord Bingham, another former chief justice, wrote in 2010, the few clauses of the 1215 Magna Carta that remain law today ‘have the power to make the blood race’. Their words, he suggested, ‘should be inscribed on the stationery of the Ministry of Justice and the Home Office in place of the rather vapid slogans which their letters now carry’.
But Bingham was too wise a judge to think he could enforce a medieval statute in modern times. ‘The significance of Magna Carta,’ he wrote, ‘lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality.’It is an 800-year-old myth of which we may all be proud.
The text in this article is available under the Creative Commons License.