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Magna Carta at 800

June 18th, 2015 | Posted by admin in Law & Politics | News - (0 Comments)

Recently, Runnymede in Surrey saw the political and ruling elite of Britain descend upon its tranquil countryside yet again. They were there to commemorate and mark 800 years since another group of ruling elite had curbed the power of a monarch, and in doing so set out certain rights due to all the people.

The Queen was also in attendance- at the same place where her ancestor had signed a peace treaty with his nobles so long ago, and had altered the relations between ruler and ruled. Also in attendance was Dr Justin Welby, the Archbishop of Canterbury: it was a previous Archbishop of Canterbury, Stephen Langton, that had been instrumental in drawing up the document they were commemorating.

Magna Carta in itself is a remarkable document. Taken in the context of the medieval time that it was signed in, it is quite revolutionary and very much ahead of its time. In a stratified, hierarchical society, dominated by an Anglo –French elite, with the feudal system linking land ownership, duty and loyalty, and all layers society together, the very rights that it presupposes are enormous. The rights and freedoms we take for granted today are indeed often set out in Magna Carta or subsequently, and would have been unheard of by our medieval ancestors.

Although many of its 63 clauses have either been repealed, or become irrelevant over time, several clauses still remain significant today. Notably and famously, Clauses 39 and 40:

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice.

Much of the charter is essentially a peace agreement between the King and his barons. Provisions are also made for those affected or disposed by the fighting, and redress and restoration made. The Church also received protections under its terms- and justice and the rule of law is championed and upheld:

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes.

45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.

63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.

Even 800 years on, such is its impact that Magna Carta is still very much relevant today. The freedoms it sets out, its efforts to uphold the law, and the charter’s essential sense of democracy are as relevant today as they were back in 1215.

In 1215, a council of barons had presented the document to King John to sign. In 2015, the Prime Minister merely delivered a speech. In his speech, Prime Minister David Cameron expressed his praise for Magna Carta- and his hopes for the future. That future- following on from the Queen’s Speech- involves the new government (now with a majority, and not sharing office space with another party) consulting upon a British Bill of rights. The Conservative plan is to eventually supersede the current Human Rights Act with a British Bill of Rights. The government points out the Human Rights Act (which they often pointed mention was introduced by Labour), based as it is on the European Convention on Human Rights, although worthy and effective in upholding human rights, has resulted in some interesting results.

Not only have the European courts called the UK to account over human rights issues previously, but many say that those European courts have strayed into areas of UK law that are best left to the UK courts to decide- such as prisoner voting. Further, strict application of the Human Rights Act has led to some legal verdicts and decisions that rights and proper under law- but morally and ethically questionable. In court, human rights arguments are regularly use by both sides, and on appeal. At law, lawyers regularly use and abuse human rights provisions to advance their client’s case, clearly oblivious to the deeper meaning of the legal clauses that they use so freely.

It is of course a typical British irony that the same Queen’s Speech that set out plans for consultations of a Bill of Rights also set out plans to debate a new laws (such as an Extremism Bill, inter alia) that would in some situations curb civic rights, and allow the state to eavesdrop and conduct surveillance upon the British people.

Further to that, the Queen’s Speech set out plans to debate such Bills– bit only referenced a consultation on a Bill of Rights. This reflects the fact that there is opposition (even amidst the Conservative back benches) to such a Bill, particularly amongst what is left of the Labour and Liberal Democrat benches. Many civil rights campaigners are even more vocal at any efforts to repeal the Human Rights Act in favour of such a Bill. The Prime Minister knows that consulting, debating and then pushing through such a Bill will prove to be an uphill struggle over the next few years. Indeed, he would probably find more consensus, and make better progress, with Chancellor Angel Merkel and President Francois Hollande concerning the UK’s exit from the EU, than with his own government and opposition concerning a UK Bill of Rights.

With that in mind, the Prime Minister would do well rot recall that we actually have a Bill of Rights, dating from 1689. This came into being following the Restoration of the Stuart monarchs, and sought to address King James II’s actions. The Bill called for free and open elections, sought to uphold the supremacy of the rule of law, amidst other provisions.

If the Prime Minister’s memory does not stretch that far, then maybe he should look back at one of his own speeches (quoted from above). He should recalls that we already have a system of rights in place, a system which has been referred to, and copied around the world. It has ben called the ‘cornerstone of liberty,’ and sets out the freedoms and rights of citizens.

The Prime Minister should save himself the trouble he will face with a Bill of Rights, and look to Magna Carta instead. Although the parchments it was written on are faded, tattered and torn 800 years on- it still looks good for its age.

“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”

Since Woodrow Wilson set out the 14 Points at the Paris Peace Conferences in 1919, self determination has been an ideal throughout the 20th century. The right and ability of a people or a nation to determine their own fate, and to decide their own identity, has been championed throughout the last turbulent century.

1Indeed, as the map of Europe was redrawn several times throughout the twentieth century, such a matter has become increasingly important. As the Austro Hungarian Empire collapsed, and the regions inside it forged their own national identity free from that of their former rulers, many hoped that their own nationalistic dreams would be realised and achieved. Two Worlds Wars, and the subsequent divisions throughout Europe proved those dreams to be wrong.

Since the Berlin Wall fell in 1989, such a hope returned to Europe. The previous centuries of (often despotic) foreign rule came to an end, to be replaced with strong nationalistic sentiments, and a sense of freedom and optimism. The last two decades have only served to strengthen and support such hopes and dreams- born out of fear and uncertainty all those years ago. Europe is now a thriving collective of individual nation states, all of them celebrating and championing their own unique culture, language and heritage. Whatever the political, economic and social impart of the European Union, Europe is united (although very disharmoniously in a troubled and often flawed political and economic union) in a through the disunity of all these disparate, and separate nation states.

The fall of the USSR led to the creation of the modern Europe, with a remarkable degree of success. As a fulfilment of his dream of national self determination, President Woodrow Wilson would be proud. He himself was from a nation that rejected their own imperial overlords, and over the centuries became their own distinctive nation, founded on an ideal of freedom and independence as opposed to a national identity.

It is not just in Europe; such an ideal is global. Just off the tip of South America lies a rocky, windswept chain of islands, known as Las Malvinas to Argentina, and the Falklands to the UK. For several centuries their ownership has been disputed. However, 2013 saw a landmark referendum held on the Islands (population 2932- and several thousand penguins and sheep), in which 99.8% voted to remain British. After centuries of disputed ownership, both London and Buenos Aires could not get a more clear signal than that as regards how the Islander self identify, and as to their nationalist sentiments. They have exercised their right to self determination. Of course, the matter of the Falklands is not as straightforward as that- and neither will it be resolved as easily.

As the USSR collapsed, several of its regions (such as Chechnya, Moldova, South Ossetia, and Donetsk) expressed such nationalistic sentiments. The intervening decades have seen great political posturing, military conflicts, and social upheaval as those and surrounding regions have attempted (with varying degrees of success) to achieve that dream of a nation state, backed with a distinct national identity.

The collapse of the British Empire similarly saw regions seeking their own independence and aspiring to self determination. In the Far East, the foundation of Malaysia following World War II had it roots in the amalgamation by the UN of the former British colonies of North Borneo and Sarawak- with their consent to unite and to form a nation together. It must be noted that this was arranged at a political level, without the people being consulted directly via a referendum, but with great popular support.

Self determination, though, can turn very ugly. The breakup of Yugoslavia, and the subsequent civil wars in the various regions along ethnic lines, goes to show just how far people will go to establish and defend their own culture and national identity. Self determination is a wonderful ideal- but the route to achieving it can be bloody and painful.

Aside from the human rights upheld by the European Convention on Human Rights, and similar legislation, the right to self determination is often the most missed or overlooked right. That right of citizens to choose their own national identity, to follow and uphold their own national traditions and heritage freely, openly and without fear is extremely important. As a collective right, it is crucial

In making that choice, many factors come into play. Some may be straightforward, others less so. Some factors might be cultural, or a matter of tradition. Language plays a part – as does economic matters. Some such matters will be linked to a neighbouring state, or to past colonisers- some factors unique to that region.

Although an issue that has very much been a part of international politics and relations for centuries until it is was clearly articulated by President Wilson, self determination has been a key theme throughout the 20th century, particularly in Europe. Indeed, the recent vote in Scotland, and nationalistic mutters in areas as diverse as Bavaria and Catalonia, shows that self determination is still as important today as it was when set out at Versailles in 1919.

Always an emotive issue, self determination does have the great advantage that it gives the people the right to have their say, and to make their own collective decision as regards their national identity. Admittedly, though, self determination can cause more problems than it solves- for example, the divisions in Northern Ireland. Rarely, will the result of such a collective decision result in everyone and all parties being happy with the outcome.

However (with apologies to Abraham Lincoln), to (mis)quote another United States President, “You can [please] all the people some of the time, and some of the people all the time, but you cannot [please] all the people all the time.”

A crucial concept of law is that justice should be open, and seen to be open. That concept has been in existence for over a thousand years in the UK, and has been jealousy protected over the centuries. That is why the media can report on court cases, and there are public galleries. That is also partly why transcripts of court proceedings are made. In a democratic society, it is vital that justice is seen to be handed out, and that the court system is accessible, available and understandable to all.

There is, however, a counter argument. Many cases and episodes over the centuries have challenged that. Indeed, with the terrorist threat the last few decades, recent related court cases and legislation (Prevention of Terrorism Act [2005], for example) challenge that. Also, human rights issues, such as the right to privacy, and right to a home and family life amongst others, similarly challenge that concept. There are some occasions where a truly open hearing might be prejudicial to the parties concerned, or to national security Hearing those cases (or parts of those cases) in secret, while contrary to legal principle, is sadly necessary In the interests of national security, or personal privacy, or a whole variety of reasons, court proceedings can be closed, or (to use the Latin) heard sub rosa.

That principle is well established. The Bank Mellat case (2013) established the legal precedent that a CMP (closed material proceeding) can be heard by the Supreme Court. In the last decade, it is a well known secret that some terrorist trials have taken place in secret. Not only does this deny the suspects a public voice, and their day in a public court (which is often what they want), but it allows classified intelligence to be used as evidence, it allows covert sources to be identified or used in court (without putting them or other agents or sources in danger), and intelligence methods to be revealed in a confines of a secret court. Justice is done- and national security is well served.

Such legal and democratic theory is about to be put to the test by the Court of Appeal. The Crown Prosecution Service (CPS) has claimed that an upcoming case, whilst a criminal proceeding, is actually a terrorist case. Arrested in “high profile circumstances” the defendants (under current reporting restrictions, they are only being identified as AB and CD) are accused of offences related to preparing terrorist acts, and possessing information relating to bomb making. As such, the CPS is citing national security, and has court orders banning the media from reporting the case, and banning access to the case.

The orders of Mr Justice Nicol were challenged by the media, and the matter submitted to the Court of Appeal (CA). The media were further banned from revealing the existence of the court orders until the CA proceedings. At time of writing, the court was reviewing Mr Justice Nicol’s orders, (sic) the media could report on the whole matter- although under restrictions, pending the outcome of the appeal.

The media response to the initial court order was predictable- and absolutely right and proper. In a democracy, a free and impartial press is necessary to bring to public attention such matters, and to hold to account and scrutiny the workings of the state- amidst reporting on Justin Beiber’s latest faux pas, the results of the World Cup, and the latest recipe for tarte tatin. In being outraged, and seeking a review of the court orders, the media is acting as any citizen would want them to in a democracy.

Of course, there are limits to that need to report the innermost workings of the state, and to expose everything, as the media learned the hard way in the Levenson Enquiry; with such a duty comes responsibility. That, however, is for another post.

The courts’ response was equally predictable. Although agreeing with the open justice concept, the judges admitted that there are times where secrecy can be best. The case of AB & CD, the CPS claims, is based on exceptional circumstances, and as such it is necessary for the case to be heard secretly.

Quoting from a BBC report, most strangely, the CA: “Heard that the head of the Crown Prosecution Service’s counter-terrorism team had claimed that if a decision was taken to hold the trial in open court, and to identify the defendants, it might have to abandon the prosecution.”

Without knowing the facts of the case, such a bizarre CPS statement by has to accepted at face value.

In reviewing Mr Justic Nicol’s existing order, the three judge panel on the CA has to debate the fine line between open justice, and national interest. To an extent, though, the matter has already been decided. There is legal precedent which allows for cases to be heard in secret if necessary. Such restrictions are only imposed when there is an urgent and pressing national security issue at stake- which the CPS claims there is here.

The case of R v AB & CD is not about the balancing open justice and national interest. The matter is not one of ‘secret courts’ and ‘a denial of open justice’ as the newspapers are stridently claiming. It is merely a case of whether the Court of Appeal has the strength to do the right thing legally, to apply the law as it stands, without emotion. Will they have the legal conviction to do what is legally the only decision to make? If they do not, and fail to apply the law as it stands, then they have failed the British people, and the criminal justice system.

Admittedly, though, if the three judges do the right thing by the law, they do the wrong thing morally and democratically- and vice versa. Law and morality are rarely one and the same thing, as the case of R v AB & CD shows.