Raab expanded considerably on the sentiments expressed above in the first chapter of his book The Assault on Liberty: What Went Wrong with Rights (2009). When this was published, Raab took the opportunity openly to state that “I don’t support the Human Rights Act and I don’t believe in economic and social rights”, and many of the Act’s defenders regard the Bill of Rights Bill that he has recently introduced as the culmination of a twelve-year campaign to rip up our current human rights protections.
In the case of Magna Carta, Raab argues that “the seeds of British liberty were sown” at Runnymede when “English nobles persuaded their monarch to cede rights and freedoms that charted a course towards liberal democracy”. In his view, Magna Carta’s “nascent principles – the rule of law, habeas corpus and trial by one’s peers – still represent the earliest articulation of liberty capable of resonating with a modern audience” and the document “marks the historical starting point for the modern debate on ‘rights’” (note the scare quotes) in that it spelt out “certain specifically defined liberties through a series of rights that sought predominantly to check the overwhelming or arbitrary exercise of power by the monarch”.
Significantly, Magna Carta was also invoked by another Tory politician who wanted to do away with the Human Rights Act. This was David Cameron, who, in the Mail, 15 June 2014, called the Charter
“a great document in our history – what my favourite book, Our Island Story [1905, republished by Civitas in 2005], describes as the ‘foundation of all our laws and liberties’. In sealing it, King John had to accept that his subjects were citizens – for the first time giving them rights, protections and security. The remaining copies of that charter may have faded, but its principles shine as brightly as ever, and they paved the way for the democracy, the equality, the respect and the laws that make Britain”.
Or as W.C. Sellar and R.J. Yeatman put it rather more succinctly than both Raab and Cameron in 1066 and All That (1930), Magna Carta was the “chief cause of Democracy in England, and thus a Good Thing for everyone”. However, they added wryly: “Except for the common people”.
‘A national myth’
As Geoffrey Robertson points out in Crimes against Humanity: The Struggle for Global Justice (2000), Magna Carta “had nothing to do with the liberty of individual citizens: it was signed by a feudal king who was feuding with thuggish barons, and who was forced to accede to their demands”. The Barons were up in arms at the taxes being levied on them by King John, and Magna Carta was essentially a carve-up of power from which the vast majority of the people were completely excluded. What the barons were interested in was protecting their own interests and privileges, not any supposed rights of their fellow countrymen, let alone countrywomen. Thus the rights contained in Magna Carta were not human rights, nor even the rights of Englishmen, but simply political settlements between the upper echelons of society and remedies for specific grievances with little relevance outside the feudal society of their times. The much-vaunted Chapters 39 and 40 of the Charter did not confer rights on the king’s subjects but simply imposed restraints upon the monarch, and limited ones at that.
In the course of the ensuing centuries, the original articles of the Charter were considerably stretched and came to include a greatly expanded list of individual rights. For example, in the 1620s it was invoked as embodying an ‘Ancient Constitution’ by parliamentarians and lawyers such as Sir Edward Coke and John Hampden, who were struggling to contain the Stuart kings’ claims to absolute power. And this was a process that would continue throughout the ensuing centuries, with Magna Carta frequently being evoked in order to assert apparently ancient legal principles in the present moment, even if their alleged origin was somewhat doubtful. As Tom Bingham put it in The Rule of Law (2010): “The significance of Magna Carta 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”. Or as Francesca Klug argues in A Magna Carta for All Humanity: Honing in on Human Rights (2015), although only three-and-a-half clauses of the Charter remain on the statute book today:
“What still stands has enjoyed a longer life than any other English enactment and has taken on a symbolic significance that far exceeds any legal effect … Regardless of the actual words of the text, its impact or legacy, the Magna Carta has come to stand for the ‘rule of law’, limits to monarchical or executive power and basic liberties”.
Similarly Michael Freeman notes in Human Rights (2011), it has been “transformed from a limited political and legal agreement into a national myth”.
What Has Magna Carta Ever Done for Us?
Contrary to much popular mythology, Magna Carta had absolutely nothing to say about freedom of expression. Indeed, the first statutory prohibition on speech was enacted in the same century, when, in 1275, the crime of ‘scandalum magnatum’ was created in order to protect the ‘great men of the realm’ from any statements that might arouse the people against them. This would be followed in later centuries by the Star Chamber, dire punishments for sedition and blasphemy, and the licencing of the press.
The original Charter granted only ‘free men’ (that is, property owners, excluding Jews) the right to a trial – and then only by other ‘free men’. It was not until 1354, under Edward III, that the right was granted to a ‘man of whatever estate or condition he may be’. Women were not allowed the same right as men to sit on juries until 1928, it was not until 1972 that the property qualification was abolished. The Northern Ireland (Emergency Provisions) Act 1973 established the Diplock Courts, in which cases were heard without juries. These were abolished by the Justice and Security (Northern Ireland) Act 2007, although non-jury trial may be allowed in specific cases by the Director for Public Prosecutions for Northern Ireland. The Criminal Justice Act 2003, applicable throughout the UK since it came into force in 2007, allows jury-less trials in complex fraud cases or where there is a risk of jury tampering. The Criminal Law Act 1977 removed the option of trial by jury from many categories of cases, which were subsequently tried summarily before stipendiary magistrates. Section 11 of the Defamation Act 2013 removed the presumption of trial by jury in defamation cases, with the result that if a party wishes to have a jury trial in a defamation case in England and Wales, they have to persuade a judge that this is appropriate in the circumstances of the specific case.
More generally, Magna Carta has had nothing to offer for those repeatedly stopped and searched by the police because of their skin colour and/or religious affiliation, nor to those terror suspects subject to Control Orders until these were replaced by Terrorism Prevention and Investigation Measures Act (TPIMs) in 2011. As David Allen Green argues, Magna Carta is
“a wonderful and rousing statement of the rule of law. But, as law, it 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”.
The few bits of Magna Carta that have survived are confirmations of rights which have been subsequently guaranteed by other legal instruments, whereas the Human Rights Act requires judges to interpret all legislation in conformity with it or to declare that a statute is not compatible with its terms.
Legislating at Will
It is this requirement that enemies of the Act and the Convention have persistently seized on and represented as attacking parliamentary sovereignty. However, it does no such thing, as Tom Bingham clearly pointed out in The Rule of Law, noting that the Act was
“carefully drafted so as to preclude the invalidation by the courts of domestic legislation inconsistent with the articles of the European Convention given domestic effect by the Act. It provided instead for the higher courts to make declarations of incompatibility which ministers might take steps to rectify, but were not obliged so to do”.
Indeed, it could be argued that the real problem with the Act is that, in deference to parliamentary sovereignty, or rather to a particular conception of it, it provides no check in principle to Parliament legislating against the rights of citizens. And that includes abolishing the Act itself, which, as Conor Gearty notes in Can Human Rights Survive? (2006) “carries within its substance no protection against later repeal by simple majority. It has not been inoculated against subsequent political attack”. An attack now being waged by Raab in the name of liberty. But for all his windy rhetoric about protecting the freedom of the individual, it is very difficult to avoid the conclusion that the government’s fundamental problem with the Act is that they regard it as impinging on their freedom to legislate at will. If only that were the case ….
This is part two of a four part post, part one was published on 13 July 2022, parts three and four will be published later this week.
Julian Petley is emeritus and honorary professor of journalism at Brunel University London His most recent book is the second edition of Culture Wars: The Media and the British Left (Routledge 2019), co-written with James Curran and Ivor Gaber. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television. A former print journalist, he now contributes to online publications such as Inforrm, Byline Times and openDemocracy.