The Role of the The Magna Carta in the Development of the UK Constitution

The Magna Carta, or ‘Great Charter’ is perhaps the most celebrated document in British political history.

Signed between King John (r.1199-1216) and his feudal barons at Runnymede in June 1215 in resolution of a political crisis, the document established for the first time the equality of all, including Kings, before the law, and began to re-define the role of a monarch in relation to their subjects, acting as an early check on autocratic executive power.[1]

Parts of the document were replaced or rewritten soon afterwards and what remained of the original 63 clauses has been repealed and reframed on many occasions, yet it still stands as a kind of ancient foundation stone of the British Constitution and historically underpins the right to liberty in Britain. This is due to the judicial values and principles it is associated with, such as the right of all ‘free men’ to a fair trial contained in the 39^th Clause, still part of British law to this day:

‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.’

Although not regarded as a key feature of the original document, this has subsequently been widely interpreted, as in the 14^th century when it was taken by Parliament to entrench the right of trial by jury. For Lord Devlin, ‘Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.’[2]

The Magna Carta has its legacy in many of the modern world’s key constitutional documents, such as the American Declaration of Independence (1776) and Bill of Rights (1791), and both the Universal Declaration of Human Rights (UDHR[3] (1948)) and the European Convention on Human Rights (ECHR[4] (1950)), the latter now incorporated into UK law via the 1998 Human Rights Act. The document is now mostly significant for its symbolic importance; curators at the British Library refer to the Magna Carta as ‘a potent, international rallying cry against the arbitrary use of power’ and for the late Lord Bingham Clauses 39 and 40, with their emphasis on freedom, lawful judgment and justice, retain ‘the power to make the blood race’.

Shami Chakrabarti, former director of Liberty and now Shadow Attorney General, regards the Human Rights Act as ‘a modern day Magna Carta’, adding: ‘If the Great Charter’s principal lesson is that no power is absolute, the Human Rights Act honours that legacy by exercising constraint over an increasingly authoritarian executive.’ However, she is also clear that the document’s importance might be more symbolic than real, noting its limitations and emphasising instead the importance of protecting the 1998 legislation: 

‘Magna Carta … has nothing to say about free speech or personal privacy, religious freedom or peaceful protest, and it offers no redress when rights are infringed. … It’s easy to romanticise Magna Carta, but for all its rich tradition (unlike the Human Rights Act) it cannot help ordinary people in checking abuses of power.’[5]

References

[1] Winnie the Pooh creator A.A. Milne helped fix his reputation when he wrote "King John was not a good man" (1927) and contemporary histories also portrayed him as a malevolent monarch, as in this line attributed to thirteenth century monk Matthew Paris: "Foul as it is, Hell itself is defiled by the fouler presence of John". However, King John’s reputation has been contested in recent decades, with some arguing he was an energetic reformer.

[2] Lord Devlin, quoted in Dominic Raab, The Assault on Liberty: What Went Wrong with Rights (HarperCollins, 2009)

[3] Universal Declaration of Human Rights

[4] European Convention on Human Rights

[5] Shami Chakrabarti, ‘Magna Carta and human rights’, British Library Online. http://www.bl.uk/magna-carta/articles/magna-carta-and-human-rights#sthash.ppv5uMgK.dpuf