Praising Magna Carta, burying the Human Rights Act

How a mythical version of Magna Carta is being used to undermine real human rights.

Magna Carta – more often invoked than understood

The Onion, with its typical brilliance, once concocted the headline “Area Man Passionate Defender Of What He Imagines Constitution To Be” for the satirical story of

self-described American patriot Kyle Mortensen, 47,….whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. “It’s time for true Americans to stand up and protect the values that make us who we are.

And thinks:

…the most serious threat to his fanciful version of the 222-year-old Constitution is the attempt by far-left “traitors” to strip it of its religious foundation.

“Right there in the preamble, the authors make their priorities clear: ‘one nation under God,'” said Mortensen, attributing to the Constitution a line from the Pledge of Allegiance, which itself did not include any reference to a deity until 1954. “Well, there’s a reason they put that right at the top.

In Britain, we don’t have a codified constitution to reimagine in line with our ideological prejudices. But we do have Magna Carta. And instead of Kyle Mortensen, we have David Cameron, who will say:

… the world was changed for ever when King John put his seal to Magna Carta. “The limits of executive power, guaranteed access to justice, the belief that there should be something called the rule of law, that there shouldn’t be imprisonment without trial – Magna Carta introduced the idea that we should write these things down and live by them.

But that:

“…here in Britain ironically, the place where those ideas were first set out, the good name of human rights has sometimes been distorted and devalued. It falls to us in this generation to restore the reputation of those rights – and their critical underpinning of our legal system. It is our duty to safeguard the legacy, the idea, the momentous achievement of those barons. And there couldn’t be a better time to reaffirm that commitment than on an anniversary like this.”

The legal journalist David Allen Green dissects this peculiar British habit of praising Magna Carta whilst disdaining the human right instruments that are actually in effect. Drawing on a speech by Supreme Court justice Lord Sumption he observes that the document itself was toothless, irrelevant and short-lived. It was essentially forgotten until propagandists in the age of the Stuarts began using it as a basis for their contemporary claims:

“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right”.

It is heady stuff, and it should be read aloud, perhaps to Purcell or Elgar.

But read it again carefully, and you will see it says little which is concrete at all. For as Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”.  it tells you nothing about what that law should be.  And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t.  It was – and remains – a platitude, a slogan.

And so, the advances in “liberal” protections for the individual in English legal history – the writs of habeas corpus or the rulings against unrestricted warrants – came in unrelated legal developments, none of which depended on Magna Carta.

In fact, for a supposedly fundamental document, there is little to see of its “fundamental” effect: few, if any, cases have ever turned on it.  Although it is often invoked in passing, it lacks the live and real effect of an actual constitutional instrument.  Compare this impotence with the entitlements in the US Bill of Rights, which make actual differences to US citizens every day.

But, but….

But, so what?  Magna Carta is symbolic, isn’t it? And isn’t symbolism important?

So used are many people to thinking Magna Carta is a Good Thing they are displeased at hearing anything about it other than praise.  Don’t you understand, they will ask, that Magna Carta is symbolic?

Symbolism is important. And what Magna Carta is symbolic of is not a great English constitutional principle, but the lack of one.  It symbolises the capacity of people to nod-along at being told they have fictional and non-existent rights instead of having rights which can actually be enforced.  It symbolises that people are content with believing in fairy tales.

Those with political and legal power know this.  It is safe for the government to want you to celebrate Magna Carta, which you cannot rely on in court, whilst it – for example – seeks to repeal the Human Rights Act, which you can.

Does Magna Carta mean nothing to you, asked Tony Hancock.  Sadly, to the extent it matters, Magna Carta means almost nothing at all.

Now, one could be cynical about Cameron wrapping himself in Magna Carta; he has to talk about Magna Carta for the same reason communist East Germany had to call itself ‘the German Democratic Republic’. I’m inclined to be more generous and see it instead as an example of widespread naivety on the right. They think liberty is intrinsic to Britishness: just look at our history of respecting  freedoms that stretches all the way back to Magna Carta!

One can see this assumption that the British of all people don’t need need onerous human rights standards in the regularity with which opponents of the ECHR observe that it was originally intended to stop the rise of another Hitler and therefore should not possibly be affecting a country like Britain. Indeed, I once heard a Conservative friend argue that it was safe to scrap the Human Rights Act because “it wasn’t like we weren’t free before it passed”.

This is a supremely complacent reading of history. It arises from the conservative proclivity for reducing the word to simplistic binaries: there are free nations and then there are tyrannies. In fact, free nations can act most tyrannically. For example, the US Senate’s report on the use of torture found that amongst other atrocities, detainees had pureed food pumped it into their anuses.

Some of the victims of these cruelties found themselves in Black Sites due to collusion by British authorities. And lest we forget we used torture ourselves in Northern Ireland, in our colonies and even during our proudest moment: WWII.

Sadly, this is not an exception. Britain has a long history not only of freedom but also of oppression. We were the nation that invented concentration camps. British soldiers massacred hundreds of peaceful protestors on a single day in India. The victim’s relatives did not have the option that Baha Moussa’s family did of taking Britain to the ECHR. Or closer to home, we might note that marital rape only became a crime in Britain in 1991. There is thus nothing about being British that makes us impervious to the temptation to abuse and degrade.

That means we need those instruments that entrench a culture of human rights. It is good that we that through the ECHR, we are part of a community of nations that challenge each other to uphold human rights. And it is desirable that the Human Rights Act makes it easier to bring challenges by allowing them to be heard in British courts rather than a massively backlogged one in Strasbourg. Neither Magna Carta specifically nor our history generally gives us any right to imagine we are above such things.

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