Magna Carta – Dead or Alive?

Magna Carta is the “anchor of the rule of law” as once famously described by Lord Bingham of Cornhill. 800 years since its signing in 1215, the relevance of the Great Charter as this ‘anchor’ in contemporary systems has come to the forefront of attention as societal changes, economic pressures and political influences exert themselves on the fundamental principles that were long ago enshrined on that famous day at Runnymede.Despite most of Magna Carta being repealed, two prominent clauses remain particularly pertinent today.

Clause 40: “To no one will we sell, deny or delay right to justice”

Whilst the access to justice is an inherent part of legal systems across the globe, struggling economic conditions have been detrimental to the upholding of such rights. Particularly in the UK, with government debt rising, legal aid for under-privileged claimants has experienced a dramatic fall, seeing many common law sectors thrown into chaos.

Regarding family law, an increase in persons unable to afford legal representation has resulted in people standing themselves; deteriorating procedural standards. Exacerbating delays in the judicial system, which already struggles with a crowded schedule, the family law organisation, ‘Resolution’, has described the courts as being at “breaking point”. To many, such prospects are unconscionable; arguing an infringement of human rights under Article 6 and 8 of the European Convention on Human Rights (ECHR), stating it is a denial of justice to reduce the intrinsic right to a fair trial.

The justice system has, unfortunately, been submerged in bureaucratic overhaul. Legislation becomes longer, stringent procedures in court are endeavoured to be followed in fear of judicial review applications, all combined with an influx of litigation results in excessive postponements. Whilst delays are not an explicit denial of justice per se, it is a degrading inhibition as to the efficiency of our system.

Clause 39: “No man shall be imprisoned, or stripped of his rights except by the lawful judgment of his equals or by the law of the land”

Whilst these fundamental liberties have been protected in the UK’s common law system for many years, political events challenge whether their importance is deteriorating. There have been calls amongst the Conservatives that the Human Rights Act 1998, which allows domestic courts more power in relation to the ECHR, should be repealed. Notwithstanding the reduction in accessibility to these freedoms domestically, Prime Minister David Cameron has voiced aspirations to replace this with a UK Bill of Rights. As a result, one could argue that these fundamental freedoms would, therefore, be incorporated as part of our constitution and the principles enshrined by Magna Carta would be promoted further; although the enforcement of such a provision at present adheres to speculation.

Over the years, important terrorist provisions have allowed the Government to detain suspected terrorists whilst it is ascertained whether such suspicions are correct. This is directly contradictory; a form of imprisonment without the “lawful judgment by the law of the land”. The matter is compounded further when closed proceedings prevent evidence being disclosed. Despite a Special Advocate being appointed, can one believe it is fair that an accused could face the prospect of losing their individual liberty without knowing the allegations against them? Shrouded with political sensitivity, the executive faces a difficult task balancing individual liberty on the one hand and the protection of the state on the other.

Whilst the Courts scrutinise executive action, even in such circumstances, the role of the law is limited. Such problems draw our attention to the structure of our system and constitution. Whilst we see Magna Carta as a codification of our most valuable principles, we paradoxically pride ourselves in having an unwritten constitution. There is no strike down power; a declaration of incompatibility with the ECHR is the prominent tool at the disposal of the domestic courts when adjudicating on human rights. Such instances perhaps add greater weight to Cameron’s belief in a Bill of Rights. The alternative is not an unrealistic fantasy, as the United States of America has shown a great admiration of Magna Carta over its history; incorporating many of the fundamental principles within its own Bill of Rights and citing the document in over one hundred Supreme Court cases.

It is the UK doctrine of parliamentary sovereignty that constantly grapples with the rule of law and makes our fundamental principles vulnerable. Many argue that Magna Carta now holds a symbolic, rather than a practical nature. Sir Anthony Clarke, former Master of the Rolls, asserts that, in an administrative context, executive power can be held accountable as establishing whether law is intra or ultra vires is often simple and the rule of law ensures that public authorities’ powers have a legitimate source. However, the accountability of Parliament’s power is much thinner. The ballot box is one consideration, but is immaterial between elections and does not preclude the repeated abuse of parliamentary dominance. Conventions are not legally enforceable. Plausibly, it can be stated that the US enshrined Magna Carta principles more strongly through their written constitution, whilst our uncodified measures emphasise the downfalls.

Incremental developments, notably the aforementioned affairs, have emphasised the fact that, undoubtedly, most of Magna Carta’s codified text no longer plays a prominent role and whilst few clauses remain pertinent, they are constantly challenged through other influential pressures. In the one sense, as a legal document, it can be stated that Magna Carta is dead and buried. However, the symbolic nature importantly lives on. It is a classification of principles which has structured our system to date; a precedent that gives individuals the voice to challenge higher authorities to uphold our individual liberties and gives great weight to the rule of law; and it is in this sense that Magna Carta is alive and kicking.


By Dre Efthymiou

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