Lots of places picked up the surprise sale of one of the few copies of Magna Carta remaining in private hands:
The seller is Mr. Ross Perot, best remembered in the UK as the jug-eared billionaire US Presidential candidate who led his bizzaro reform party (pro-choice and pro-gun lobby) to defeat in 1992. It’s estimated that the manuscript will fetch about £15m at auction.
David Redden, the vice-chairman of Sotheby’s, described Magna Carta as “the first rung on the ladder to freedom. This document symbolises mankind’s eternal quest for freedom; it is a talisman of liberty.”
The keyword here is ‘symbolises’. The inspeximus of 1297 (of which the Perot Charter is a copy) is the version of charter which still retains some force in British law. The BBC described Magna Carta as enshrining ‘human rights in English law’.
The freedoms established by the Charter are seen to include the right to trial by jury, freedom from arbitrary imprisonment, freedom from self-incrimination (ch. 38 of King John’s charter) and, in the seventeenth-century certainly, were also seen to have guaranteed the continued existence of Parliament as the national representative, an institution that many feared was under threat from Charles I’s personal rule.
The influence of the Charter has been considerable. Its impact can be seen in the Fifth Amendment of the United States Constitution. No reason, then, why the Charter should not be held and displayed in the USA.
However, all this talk of human rights really relates to the myth rather than the reality of Magna Carta.
Firstly, there is not much of this medieval document that retains any legal force. Between 1828 and 1969, thirty-three chapters of the charter were repealed. Of the four remaining clauses, three have little real legal importance (one deals with the privileges of the City of London, one is statement concerning the independence of the Church of England -regularly ignored- and another is merely a general saving clause). It is only chapter 29 that retains any real legal power and even this is extremely limited.
Here’s what is says:
 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 otherwise destroyed; nor will we 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.
What does this guarantee? Not very much. Ch. 29 has been overidden by British Governments on a number of occasions, namely the suspensions of Habeas Corpus during the 18th and 19th century (largely to deal with people who were demonstrating/writing for democratic rights) and the Defence of the Realm Acts imposed during the two world wars. In legal cases where there has appeared to have been a clash between the actions of government ministers and the Charter, British judges have nearly always sided with the minister as in the case of Rex. vs Halliday (1917) and Liversidge vs. Anderson (1942).
Most recently, Magna Carta has failed to come to the rescue of the Chagos islanders. Their solicitor had hoped that ch. 29 might be used to challenge their forced eviction from Diego Garcia to make way for a US airbase on the grounds that this constituted unlawful exile. No dice. Charter liberties, the judges agreed, did extend to the BIOC (the colonial entity which includes Diego Garcia) and as individuals with dual British and Mauritian citizenship, the Chagos Islanders were protected by its terms. However, all ch. 29 guarantees is that the process of law that is set down in a particular terrority will be followed accordingly. The 1971 Immigration Ordinance which covered the BIOC and stated, pretty much, that anyone who wasn’t in the US military could bugger off out of it, was the law of the land and so, the judges reasonably concluded, the Chagos Islanders had been lawfully booted out of their homeland. Despite some subsequent legal victories, which did not rely on arguments based on Magna Carta, the Chagos Islanders still cannot return to Diego Garcia.
If anyone thinks that all this has been sorted out by the 1998 Human Rights Act, they are wrong. The following is from Lord Hoffman:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.”
Hoffman’s argument was essentially that British governments would avoid committing human rights abuses because it would be too politically damaging in a mass democracy. Well, Iraq, Afghanistan and the War on Terror tell you what a load of balls that is.
If you want properly defined and protected human rights, you need a proper written constitution, like they have in the USA. Even then, you need to be pretty careful about those emergency powers you’re giving to the executive and who you let be appointed a supreme court judge.
A final thought from the late, great Tony Hancock and the late great Rodney Hilton:
‘Does Magna Carta mean nothing to you? Did she die in vain?’
‘The noticeable tendency of the English to be self-congratulatory about having given the idea of liberty to the world with Magna Carta could well be modified in the light not merely of the exclusion from its enjoyment of the mass of the population, but of the long-term consequences of that exclusion.’
Text of Charter below (this is the text of the one Perot is selling, not King John’s Charter which has never had any status in English law)