Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
“The United Kingdom needs a new Magna Carta”.
Introduction:
Originally conceived as a peace treaty between Kings and Barons, the 1215
Magna Carta, incidentally became idealised as a supreme constitutional
concept that lay the foundations for the Rule of law and Parliamentary
Democracy, both in Britain and overseas. Ironically, the Charter only has
mythical status, than supreme legal effect1. Only a few provisions of the 1297
Charter (re-issued by Edward II), are part of Statute law today2. Its time myth
became reality: Britain needs a new Magna Carta. The time could not be any
riper for change; with rapid constitutional upheaval, it is necessary to define
and delineate the powers of the state as it negotiates major reform on matters
relating to Devolution and the EU. Additionally for citizens, it is necessary for a
new charter to protect them from the pervasive power of the state, especially
in this new ‘digital age’. But most importantly, 800 years of History has taught
us, that this new charter should not be more ‘honoured in the breach’3.
1
Joshua Rozenberg, 'Magna Carta in the modern age' (British library 2015)
<http://www.bl.uk/magna-carta/articles/magna-carta-in-the-modern-age> accessed
29/05/2015.
2
Magna Carta (Statute 25 Edw. 1) 1297.
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
Ripeness for Reform:
Dawn Oliver argues that ‘a new Magna Carta’, or an equivalent codified
constitutional document, is not necessary, since Britain is not facing a major
constitutional crisis that concerns the public’s attention4. On the contrary, this
current government is radically engaging in major constitutional change that
will inevitably affect the livelihoods of British people. For example, a feasible
‘Brexit’ from the EU, immediately raises questions over Britain’s legal,
economic and social future; an issue not merely in the domain of constitutional
theory. Equally, the independence agenda of the SNP, strikes doubts as to the
continued existence of the very United Kingdom, and suggests that supposedly
‘constitutional statutes’, like the Union with Scotland Act 17065, will be
repealed out of a whim. In this light, constitutional reform is immediately
necessary, especially if change is implemented at such breakneck speed.
Indeed, we only need to remind ourselves of how the Blair Government
“ripped up the constitution in a matter of minutes”6, with the constitutional
3
Edward Fennell, '‘Is Magna Carta more honoured in the breach?’' (The Times Student Law
2014) <http://www.thetimes.co.uk/tto/law/student-law/article4237741.ece> accessed
/29/05/2015.
4
House of Commons Political and Constitutional Reform Committee, Consultation on A new
Magna Carta? (7th Report of Session 2014-15 , House of Commons, London 2015) 48.
5
Union with Scotland Act 1706.
6
Ian Duncan-Smith, Leader of the Opposition, Hansard, HC Deb 18th June 2003.
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
revolution of New Labour.
The time is now for a new Charter to provide stability to the British
Constitution. Why? Principally because the state must not overtake the public
interest in deciding whether to bring about major change.
It should be stressed that a new constitutional settlement should not be a
panacea to answering questions like whether Britain should be a part of the
European Union; rather it should establish a key principle: that the state
should engage in principled reform in a way that does not abuse the flexibility
of the current uncodified constitution. Thus, GAC Griffith’s argument that the
British constitution is ‘just what happens’7, is an undesirable feature of any
constitution, because it is a recipe for continual instability.
Citizens redress:
A new Magna Carter must deliver a new emerging aspect of rights facilitation.
Chapter 29 of the 1297 Charter resoundingly establishes that the state should
deprive no freeman of the right to life, liberty and property without the due
process of law8. This iconic chapter has been lauded by lawyers as an enduring
principle of Liberty that has become the bedrock for liberties under the
common law. Paradoxically, this provision of the original charter only has
limited legal value in the modern age; for a new liberty has emerged: the right
to online privacy. In a delirium of anti-terror measures, state surveillance has
become unduly pervasive. For example, Edward Snowdon has revealed that
House of Commons Political and Constitutional Reform Committee, Consultation on A new
Magna Carta? (7th Report of Session 2014-15 , House of Commons, London 2015) 68.
7
8
Magna Carta (Statute 25 Edw. 1) 1297 (chapter 29).
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
various government organisations retain metadata, private data accumulated
through ordinary internet activity. Rightly this has led to major criticism, even
from the founder of the web, who advocates for a ‘snooper’s charter’ for
ordinary online users who are being preyed upon by government intelligence
agencies9.
Why can this ‘right’ not merely be protected through conventional means?
First, because conservative lawyers, like Lord Sumption, believe that remedies
available through the European Convention of Human Rights (typically through
article 8), would be radically misinterpreting the boundaries of its legal
acceptability10. Secondly, some would argue that online privacy is not
regarded as a conventional human right at all. This is fallacious. Any medium
by which the state unduly intrudes in our lives, has typically been asserted as
unlawful and contrary to the respect for human dignity. This must be
considered in a new Charter; for fundamental values are envisaged to be
timeless and free from ‘major’ qualification. This ultimately suggests that a
‘digital Magna Carta’ is not breaking new ground.
9
Alex Hern, 'Tim Berners-Lee urges Britain to fight 'snooper's charter'' (The guardian 2015)
<http://www.theguardian.com/technology/2015/may/29/tim-berners-lee-urges-britain-tofight-snoopers-charter> accessed 29/05/2015
10
Lord Sumption, 'The Limits of Law' Sultan Azlan Shah Lecture (Kuala Lumpur 2013)
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
Reconciling sovereignty:
The doctrine of Parliamentary sovereignty poses an immediate barrier to the
enactment of any codified constitutional settlement. Yet, as asserted in the
Jackson litigation11, Dicey’s chauvinistic conception of Parliamentary
sovereignty is out of date. However, we should not necessarily rush to produce
an entrenched codified constitution. Rather, according to Kings College
University, a suitable arrangement would be for a ‘Constitutional Consolidation
Act12, which would negotiate a settlement between two undesirable
‘extremes’. One extreme is that Magna Charter becomes a constitutional code;
but History reminds us that the risk associated with non-compliance of the
Charter’s terms means that a new Magna Carta could “die in vain”13.
Additionally, fully fledged codification will disproportionally restrict the
flexibility of Britain’s current unwritten constitution. Therefore, an appropriate
balance lies in statutory reform, which ironically embraces the paradox of the
1297 Charter: that despite currently being only of ‘historical value in a court of
law’14, it still has mythical status today.
11
R (Jackson) v Attorney General [2005] 1 AC 262
House of Commons Political and Constitutional Reform Committee, Consultation on A new
Magna Carta? (2nd Report of Session 2014-15 , House of Commons, London 2014)
12
13
Shami Chakrabarti, 'Magna Carta and human rights' (British library 2015)
<http://www.bl.uk/magna-carta/articles/magna-carta-and-human-rights> accessed
29/05/2015
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
Conclusion:
The Magna Carta was a means of constitutional dialogue between those in
authority and those subject to it. This is reflected by its numerous reissues.
Whilst the Charters developed petty regulations for medieval society, they
collectively became recognised as a supreme rule: that the crown is not above
the law. But this rule has been easily broken. The Magna Carta needs to be
reissued as a statutory constitutional settlement, to act as constitutional brake
against the whims of the political establishment and to more securely uphold
the Rule of Law in a modern age.
Words: 999
Joshua Rozenberg, 'Magna Carta in the modern age' (British library 2015)
<http://www.bl.uk/magna-carta/articles/magna-carta-in-the-modern-age> accessed
29/05/2015.
14
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
Bibliography:
Statutes:
Magna Carta (Statute 25 Edw. 1) 1297
Union with Scotland Act 1706
Reports:
Ian Duncan-Smith, Leader of the Opposition, Hansard, HC Deb 18th June 2003
House of Commons Political and Constitutional Reform Committee, Consultation
on A new Magna Carta? (2nd Report of Session 2014-15, House of Commons,
London 2014)
House of Commons Political and Constitutional Reform Committee, Consultation
on A new Magna Carta? (7th Report of Session 2014-15, House of Commons,
London 2015)
Cases:
R (Jackson) v Attorney General [2005] 1 AC 262
Neema Daniel, 19
[email protected]
University of Exeter, Law LLB.
Journals:
Lord Sumption, 'The Limits of Law' Sultan Azlan Shah Lecture (Kuala Lumpur
2013)
Websites:
Chakrabarti, Shami. 'Magna Carta and human rights' (British library 2015)
<http://www.bl.uk/magna-carta/articles/magna-carta-and-human-rights
Fennell, Edward. '‘Is Magna Carta more honoured in the breach?’' (The Times
Student Law 2014) <http://www.thetimes.co.uk/tto/law/studentlaw/article4237741.ece
Hern, Alex. 'Tim Berners-Lee urges Britain to fight 'snooper's charter'' (The
guardian 2015)
<http://www.theguardian.com/technology/2015/may/29/tim-berners-leeurges-britain-to-fight-snoopers-charter
Rozenberg, Joshua. 'Magna Carta in the modern age' (British library 2015)
<http://www.bl.uk/magna-carta/articles/magna-carta-in-the-modern-age