By Alistair MacDonald QC, Chairman of the Bar Council of England and Wales
-The origins of Magna Carta lie in the disastrous defeat of King John at the Battle of Bouvines, in Northern France, which was the culmination of a financially ruinous campaign when he was attempting to regain the French possessions of his forefathers.
John returned to England, therefore, with his tail between his legs. The war had essentially made him bankrupt and so it was that he needed the financial support of the nobles, who were, in that feudal society, those who ended up paying taxes of all sorts to the King.
However, by this stage, the barons were completely fed up with John. He had behaved in a high handed, cruel and imperious manner and had extracted large amounts of money from them. They were determined therefore to bring him to heel.
They seized the city of London and, in an act of unbelievable defiance for the time, renounced their oaths of allegiance to the king and elected a new leader. The seizure of the city that was, by far and away the largest in England, left John in a hopeless position and drove him to reverse his original refusal to negotiate with his subjects. Extensive discussions followed, which were conducted in the Temple, the place where, even in 1215, the lawyers were already established.
The fruit of those discussions was Magna Carta. It was designed to give the barons, and other subjects, rights that could be enforced against the Crown. This was a revolutionary concept in an age in which the king considered that he ruled by divine right and was answerable only to God.
So, what about the contents of Magna Carta itself. Although it contained 63 clauses when it was first granted, only three of those remain part of English law. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous:
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 judgment 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.
Buried deep in Magna Carta, this clause was given no particular prominence in 1215, but its intrinsic adaptability has allowed succeeding generations to reinterpret it for their own purposes. In the 14th century, parliament saw it as guaranteeing trial by jury; in the 17th century, Sir Edward Coke saw it as a declaration of individual liberty in the conflict of Parliament with Charles I and it has echoes in the American Bill of Rights (1791) and the Universal Declaration of Human Rights (1948).
Magna Carta also stated that no taxes could be demanded without the ‘general consent of the realm’, meaning the leading barons and churchmen. It re-established privileges, which had been lost, and it linked fines to the severity of the offence with the result that the livelihood of the payer was not imperiled. Because John had agreed to the document, the Barons renewed their oaths of allegiance and all was back to the established order.
This was all, however, very short lived. John immediately sent messengers to the Pope requesting him to annul Magna Carta. The Barons refused to surrender the city of London until Magna Carta had been implemented and there was a stand-off.
Now, bearing in mind that Magna Carta has been sealed on 15 June, it is remarkable that Pope Innocent III, alarmed by the terms of the Charter, issued a Papal Bull, annulling it on 24th August 2015. Innocent described it as “illegal, unjust, harmful to Royal rights and shameful to the English people.” He said it was “null and void of all validity forever.”
The barons again renounced their allegiance to the Crown and invited the son of the French king to take the throne. An invasion took place and there was a civil war going on when John died of dysentery in King’s Lynn on the night of 18 October 1216.
So, given that the Pope annulled Magna Carta a few months after it was sealed and declared it void forever, how can it be that we are celebrating the contents of a document that, if it had any validity, was only of any effect for 9 weeks, 800 years ago at that?
The answer is that Henry III, who succeeded John at the age of 9, or at least his advisors, realising stability was an absolute necessity, revived and re-issued Magna Carta in November 1216. In 1297, Edward I enrolled the charter on the statute book of English law thus incorporating it formally into law.
So why is this apparently insignificant piece of parchment, no bigger than a dishcloth, of such colossal importance today? Well, first because it placed limits upon the Crown when it came to exercise its prerogatory rights. But it also led to a much more wide-ranging development. Because it had been explicitly granted in return for the payment of tax, it paved the way for the first Parliament to be summoned in order that approval could be given, by the nation, to the granting of tax-raising powers to the king. And because any king is powerless without money, the fact that the king has to seek the approval of the people for the levying of tax means that they were forever thereafter subject to the will of the people, expressed through Parliament, whenever money was needed. And kings, even more than ordinary people need money, and lots of it.
But that is to look at Magna Carta in a literal sense. I take the view that, whatever the limitations are on the actual words, it is the spirit of Magna Carta that has had most influence. The fact that the Crown in England and Wales has, from a very early date, been used to having to go to Parliament to seek approval for its actions, has engendered a sense, in the executive, of restraint and what we would now call proportionality. Magna Carta exemplifies an ethos within which executive action has been framed. It enshrines the concept of the rule of law, which retains centrality in the establishment and maintenance of a fair and tolerant society. That is, what I might call its philosophical legacy.
But that philosophical legacy is broader than it first appears. It carries with it what I might call the functional or practical legacy of Magna Carta.
It is, for example, a lot harder to work long hours and sacrifice many of the enjoyments of family life rather than it is simply to point a knife or a gun at a shopkeeper and demand the takings from the till. So, why is it that people, en masse, do not simply commit crime to finance their lives rather than working for their living? Why is it that individuals generally, if grudgingly, pay their taxes?
I suggest it is because, although people are never 100% contented with their lot, in general terms, they take the view that the society in which they live is equitable, tolerant and fair. And one of the chief reasons why they think that is that they know that no-one is above the law. In other words, the principals enshrined in Magna Carta have led to the very practical doctrine of accountability.
This is a critical feature of a fair society. And so it is that, instead of committing crime in order to survive, people will go to work, pay their taxes and behave in a more or less civilized fashion. In addition, if you want a government contract, you don’t have to pay a series of bribes to obtain it. And that allows good businesses to thrive and society generally, to function in a satisfactory way.
Magna Carta also specifically provided that you could not be deprived of your liberty unless through a lawful decision of your peers. In other words, unlike some jurisdictions, you do not live in fear of the knock on the door in the middle of the night and being whisked away to prison without any judicial input as to the cogency of the evidence upon which you are being held and without any timetable by which proceedings, in public, can be conducted to decide whether you are guilty of any offence. And, here we are in classical Magna Carta territory because we know that the charter provides you with a guarantee of access to justice as well. That is why the Bar has been so opposed to the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the huge hike in court fees, as these strike at the very substance of that Magna Carta promise.
If we move to the next level of the importance of the rule of law, it is its importance in the establishment and maintenance of effective and efficient means of dispute resolution. It is essential that there is a settled body of contract law governing the making and breaking of contracts. There must be a body of law to allocate blame and damages in personal injury cases. There must be law to protect those who have original ideas so that they can profit from their ingenuity thus promoting the intellectual advancement of mankind. And so it goes on, through every phase of the process by which disputes are settled and the consequences worked out, not by the use of violence, but by the employment of the impartial intellect. Again, in that way, business can prosper and society thrive.
For all these reasons, I am convinced that the principles enshrined in Magna Carta are as important today as they were in 1215. It is a terrible irony that, as we celebrate Magna Carta, it is being undermined by an executive which pays lip service to its principles. If the legacy of Magna Carta is to last another 800 years, it requires everyone with a sense of history and an understanding of the critical importance of the rule of law to our society to stand up and fight for it. The liberties conferred by this great document were hard won. We owe it to posterity to ensure that they are not lost in our time.