Magna Carta and human rights

By  Andrew Caplen, President the Law Society of England and Wales

Of all the events taking place during my year as President of the Law Society of England and Wales, the 800th anniversary of the sealing of Magna Carta is undoubtedly the one of greatest constitutional significance. It is a valuable opportunity to remind ourselves of the importance of the rule of law as being the basis of a free, fair and prosperous society – because the Magna Carta is universally recognised as being the foundation stone that supports the fundamental civil liberties enjoyed by democratic countries across the world. In fact, many see the ‘Great Charter’ as the starting point for human rights, the most fundamental of documents in the protection of the people from the powers of government.

This year also sees a general election in the UK. As part of its election campaign the Conservative Party has pledged to ‘scrap’ the Human Rights Act, and replace it with a Bill of Rights. At the same time, in its current position as the leading party, it has been instrumental in the promotion and celebration of Magna Carta in its 800th year. Is there a troubling contradiction here?

For the last two years I have been a member of the Magna Carta 800th Committee. We  have described this historic document as being “the most valuable export of Great Britain to the rest of the world.” Indeed, having enshrined the rule of law in our society, for centuries it has influenced constitutional thinking worldwide including in France, Germany, Japan, the United States, India, Latin America and Africa.

Magna Carta was central to both the American Declaration of Independence and Constitution, as well as to the UN Declaration of Human Rights in 1948. Speaking at the UN General Assembly as the UN Declaration was submitted, Mrs. Eleanor Roosevelt said that:

“We stand today at the threshold of a great event both in the life of the United Nations and in the life of mankind. This declaration may well become the international Magna Carta for all men everywhere.”

The Magna Carta is far from being relevant purely in history lessons. It is being used continually, 800 years after it’s creation, to defend some of the most prominent human rights battles in the most modern of democratic societies. An example; over 200 writs of Habeas Corpus have been submitted on behalf of detainees at Guantanamo Bay. Habeas Corpus, or “The Great Writ”, is a legal instrument first guaranteed following the sealing of Magna Carta, it’s purpose being to prevent the state from holding prisoners in extrajudicial detention – which is, of course, exactly what Guantanamo Bay was created to do. Now in the (slow) process of being closed down, the challenges against the legality of Guantanamo Bay continue to focus upon the violation of these most basic of human rights principles.

Today, in our own jurisdiction, it is the Human Rights Act (HRA), along with the UN Declaration of Human Rights, that is the closest descendant of the Magna Carta.  The HRA ensures that the rights included in the European Convention on Human Rights are enshrined in UK law. The Convention was, of course, established following the Second World War in order to protect the rights of people over the powers of governments. It was designed be utilised by the young and the elderly, the rich and the poor, citizens and foreign nationals, prisoners and ordinary members of the public. We ourselves will, hopefully, never need to rely upon it – but every year there are hundreds of people who do.

The Law Society is proud of the universal protection that the HRA ensures, of Britain’s role in the creation of an EU-wide Court of Human Rights and of the decisions that have been made by that court. We believe that plans to replace it could result in a diminution of this universal protection and potentially be an attack upon the principles of Magna Carta itself.

It is not just the Human Rights Act that is being held up by the weight of Magna Carta though. In January of this year, Lord Pannick QC referred to the Great Charter in the House of Lords while criticising the government’s plans to limit Judicial Review. Part 4 of their Criminal Justice and Courts Bill will make it more difficult to challenge unlawful decision-making by government and public bodies. When they have behaved unlawfully, it is surely right that the courts should be able to say so – after all it is a right that can be traced back to the provisions of that 1215 document.

 Other legal concerns relating to fundamental rights have also became prominent in the UK news this year. For example, the government recently announced plans to introduce legislation to regulate the use of pre-charge extended bail – specifically to limit it being extended beyond a 28-day limit. Placing a person on unlimited bail is seen by many as violating the principle outlined in Article 39 of Magna Carta that ‘no freeman shall be taken or imprisoned or disseised or exiled or in way destroyed, nor will we go upon him nor send upon him, except by lawful judgment of his peers or by the law of the land.’

The government’s increases to court fees, in some cases by as much as 600%, has also been seen as an assault on the basic principles of access to justice and of Magna Carta. The hikes in fees will surely have the effect of making the civil courts a preserve of the rich, leaving small companies crippled by unpaid monies owed to them by larger companies and private individuals unable to afford legal redress. Treating access to justice as a number on a balance sheet is not only abandoning the principles of Magna Carta – it is selling them.

Promoting and supporting the Magna Carta as part of our commitment to the rule of law and access to justice has been – and will remain – a key priority of my year as President of the Law Society. This is why we are both celebrating and commemorating this so-important anniversary. We have already called on our members for Human Rights Act case studies. The Graham Turnbull Human Rights essay competition has a Magna Carta theme. Upcoming events include a speech by the Master of the Rolls Lord Dyson on 22 April at Chancery Lane, Magna Carta Day in June, and a continued defence of the need for the Human Rights Act.

In this 800th year since the sealing of this great document, we are concerned that the HRA, our closest relative to the Magna Carta, faces repeal. As the world looks to Britain as the forerunner of human rights, dilution of the rights of our own citizens does not set a good example. Does it undermine our moral authority to speak up against abuses elsewhere? Does it allow other countries to justify their misconduct by pointing to our own less clear example?

Human rights should never be used as a political tool in any country, particularly in the UK. The discussion should be around changes broadening guarantees of rights rather than seeking to limit them – especially in a year when we are celebrating the birth of our fundamental freedoms. It is surely what the remembrance of Runnymede deserves.



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