Two anniversaries: the enduring fragility of Magna Carta
Andrew Blick |
A 100 years ago, the First World War spoiled an earlier Magna Carta commemoration. With the 700th anniversary of the document due in 1915 (15 June 1215 is the best date we have for its conception), a distinguished committee with international membership formed at the beginning of 1914 to coordinate events. However, most plans were abandoned due to the outbreak of conflict in August that year, the sole event a lecture to the Royal Historical Society by the distinguished Magna Carta scholar, William McKechnie.
A collection entitled Magna Carta Commemoration Essays appeared in 1917. In the introduction, Henry Elliot Malden, Secretary of the Royal Historical Society, extracted a positive from this diminution, finding a ‘peculiar satisfaction…in an English celebration of a thirteenth century document and event’. He did not make clear whether the label ‘English’ was intended to encompass the Scottish McKechnie, who contributed to the book. Alongside this display of cultural insularity, Malden made a claim of constitutional moral superiority on behalf of the UK. When explaining the scaled-down nature of the commemoration, Malden described how the:
memory of the assertion of the principle of government by law was overclouded by the cares of the immense struggle to maintain that principle through force of arms.
In other words, the UK (or ‘England’) was too busy fighting to preserve the values attached to Magna Carta to celebrate its inception.
To frame British participation in the Great War as a mission to sustain ‘government by law’ was questionable. Moreover, during the course of this conflict, the British authorities seriously violated this doctrine and associated principles commonly attached to Magna Carta, in pursuit of the military effort and internal security. One of the most flagrant instances provided a curious commemoration of the 1215 text.
On 10 June 1915, Regulation 14B was issued under the Defence of the Realm Act 1914 (DORA). It enabled the Home Secretary to restrict the freedom and even detain without trial individuals deemed to be of ‘hostile origin or associations.’ Hundreds – both foreign nationals and domestic subjects – would suffer under this arbitrary power. Such treatment, whether justified by the concerns of the time or not, is difficult to reconcile with the commonly perceived meaning of Magna Carta. A particular contradiction arose between Regulation 14B and the most famous part of the text, the so-called ‘golden passage, chapters 38 to 40 in the 1215 version. In chapter 38, King John, who issued the document in his name in 1215, insisted that:
In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
John then stated in Chapter 39 that:
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 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.
Finally, Chapter 40 pledged:
To no one will we sell, to no one deny or delay right or justice.
The introduction and use of Regulation 14B was a more serious blow to Magna Carta than the abandonment of an anniversary and demonstrates its vulnerability.
The document began as an attempt in mid-1215 to resolve a particular dispute. The arbitrary methods of John had provoked powerful figures into rebellion against him. Magna Carta represented an agreement by the king to behave differently in future. It attained an endurance that was legendary. Kings and parliaments regularly reconfirmed it, and by the beginning of the fourteenth century it had become what is regarded as the first ever English statute. The text found its way into the legal systems of numerous countries around the globe and influenced the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights.
The meaning attached to Magna Carta has expanded, changed and distorted through the centuries. The charter is now widely regarded – rightly or wrongly – as an expression of universal principles of human rights and democracy.
Yet while the narrative of Magna Carta as a firm and perpetual guardian of our fundamental values is both powerful and pervasive, there is another side to the story. The 1215 version of the text was never properly put into effect and about ten weeks after he agreed it, John – thanks to the intervention of Pope Innocent III, who was at the time the feudal overlord of England – had it rescinded. It reappeared, in an altered form, the following year, when John died and his young son succeeded him as Henry III. But vulnerability became a recurring theme in the history of the great charter.
The Defence of the Realm Act experience is just one example of the fragility of Magna Carta and the principles it came to represent. This weakness arises partly as a consequence of another core feature of the UK constitution: the idea of a legally unlimited or – as some have it – ‘sovereign’ Parliament. Under this model, since the UK lacks a written constitution, Parliament is not subject to formal constraints and can make or unmake any enactment as it chooses. Since the 1860s Parliament has repealed most of Magna Carta, and on occasions facilitated serious violations of doctrines connected to it, such as took place in 1915.
June 2015 and the 800th anniversary are now drawing close. While it seems unlikely that a war will ruin the party, the threat to Magna Carta persists. In recent years successive governments have shown an interest in using the power of Parliament to restrict the ability of the judiciary to review official activity to ensure it conforms to basic standards of legality. They have also been attracted to the idea of statutes that grant sweeping delegated powers to ministers, as DORA once did. It is possible that, following the May General Election, the new administration could begin to remove the UK from the jurisdiction of the ECHR, a document that expresses some of the core Magna Carta values. The government could also seek to repeal the Human Rights Act 1998, that provides the ECHR with domestic force, introducing in its place a ‘British Bill of Rights’ of relatively limited scope. Just as in 1915, Magna Carta may receive commemoration through violation, at the very point when we congratulate ourselves for the achievements associated with it.
The English translations of Magna Carta used above come from the British Library website
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