The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.
In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.
The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?
In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.
Filed under Comment, Constitution, EU law, History, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized
Does Britain need a new Bill of Rights? This is a question that very quickly becomes a different question: “Should the state impose wider obligations on its citizens – broader than those set out in general law?”
The answer to these questions, according to Conservative voices pressing for a “United Kingdom Bill of Rights and Responsibilities” is “Yes” – but only as long as the second question is answered “Yes” first. Rights, it is said, must be balanced by obligations to the extent that, arguably, they cease to be “rights” at all. Instead they become citizenship privileges, accessible only to those who meet certain criteria of moral goodness.
The Conservative Party is shortly to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue. [NB: as of early 2016 this hasn’t happened yet]
It is therefore worth looking at an earlier attempt to create a Conservative Bill of Rights – the private member’s Bill promoted by lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf
This could be the basis of the new official Tory version (Elphicke is on the committee working on the document) – and it is rather revealing. Not only does it seek to dismiss the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.
This new concept of a Bill of Rights is far from the original 1689 version – a set of rights and protections that the people had against the Executive (ie the Government or at that time the Monarch). But it illustrates the problem with many such attempts to write down the constitutional underpinnings of any state – that they say a lot about current political obsessions rather than take an objective view of the likely developing needs of a particular nation.
The intention of the Conservative version, based on what we know of Elphicke’s, is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots. We return to this issue below (see “Moral obligations”) but first must look at the Elphicke view of the rule of law.
Filed under Constitution, Criminal law, Equal-opportunities, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized
Note: for those interested in the “gays in the military” case search “Smith v UK” below
Three giants of law have entered the somewhat confected debate on the Britain’s relationship with the European Convention on Human Rights and the Strasbourg human rights court. Former House of Lords judge Lord Hoffmann, current UK Supreme Court justice Lord Sumption and Court of Appeal judge Lord Justice Laws have given significant intellectual underpinning to the simplistic arguments of the Conservative Party sceptics who claim to see a democratic deficit between government policies and Strasbourg judgments. The first out of the traps was Lord Hoffmann, giving the Alba seminar in October.
In his section of the seminar Hoffmann declared himself wholly happy with the majority view in Liversidge v Anderson AC 206 (1942).
No news there, one might think – retired judge backs even more ancient judges in 70-year-old court case. But history’s view has hitherto been different. The case hinged on an emergency wartime order used by Home Secretary Sir John Anderson to imprison Robert Liversidge (aka Jack Perlzweig) without trial and without apparent reason except to say he had “hostile associations”. Liversidge had sued for false imprisonment.
The order, Regulation 18(b) of the Defence Regulations 1939, said: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … he may make an order against that person directing that he be detained.”
The issue therefore was what is meant by “reasonable cause” – and in particular, can the court decide on reasonableness or should it simply defer to the judgment of the Home Secretary – a man in place as a result of a constitutional democratic process and there to protect us all?
Four of the five Law Lords preferred judicial deference – if the Home Secretary said there were “reasonable grounds” then that should be accepted. This is Hoffmann’s position, but lawyers and scholars have generally been more interested in Lord Atkin’s minority view: that Parliament meant there to be plausible evidence for detention; if there was not, and such evidence was not presented to the court, then the judges should declare the detention unlawful. The majority decision was, on this view, unconstitutional because it substituted the judges’ view – and indeed the Government’s view – for the will of Parliament.
Hoffmann does not seem to understand this. He takes a purposive view of the legislation and so believes the judges were right to “correct” it. Since the purpose of the statute was to protect the country from Nazi spies and the like, then the powers should be whatever was required to do that. In particular, whatever the Government (not Parliament) thought was required. The “reasonable cause” qualification could be interpreted subjectively to mean “if the Home Secretary felt he had reasonable cause”. Defence of the realm trumped constitutional niceties regarding the supremacy of Parliament.