Shami Chakrabati in the Indie on Sunday
“If the House of Lords doesn’t stand up for the Magna Carta, then it’s hard to know what the Magna Carta is for.”
Don’t worry Shami, those Barons won’t let you down.
As regular readers will recall, I posted a week or so ago about the publicity for this forthcoming (31st October) exhibition at the BL. The post got picked up not only by a few other bloggers, but also by Matthew Shaw, the curator of the exhibition. (Does the BL have some sort of web ‘rapid rebuttal unit’? When I wrote some ill-informed guff about their plans for digital theses, I also got a very swift response putting me straight.)
The BL very kindly invited me to have a sneak preview of some of the items in the exhibition. Matthew let me see the London Working Men’s Association minutebook, papers relating to Francis Place and Sir Francis Burdett, and the suffragette Olive Wharry’s prison scrapbook. If there’s anything likely to assuage a grumpy historian, it’s an opportunity to look at some old stuff.
The exhibition will feature items from outside of the BL’s own collections, including the original text of the Putney Debates (on loan from Worcester College) and the 18-foot long Great Reform Act, complete with stitched on amendments. Not only will it stretch chronologically from Magna Carta right up to the present day, but it will also tackle a variety of different themes, from the struggle for democratic rights to campaigns for freedom of the press, to the development of social and economic rights in the modern era.
Aside from the exhibition itself, there will also be a permanent website linked to it (not yet live), and a series of evening events debating key questions with guest speakers including Shami Chakrabati, Baroness Williams, Professor Conor Gearty and Polly Toynbee.
As somebody who likes watching the X-factor and also cares about threats to our civil liberties, I still don’t like the posters, but, hey, they’ve certainly provoked debate. Whatever my remaining reservations about the publicity, the range of documents on show, and the breadth of themes addressed, make this a very important and timely exhibition.
For more info, go here. Thanks very much to Matthew and his colleagues at the BL for letting me have a nose around and ask a few questions.
Apparently, Michael Gove said this at the Conservative Party Conference, last week
‘Instead of being taught about the Magna Carta, the Glorious Revolution and the heroic role of the Royal navy in putting down slavery, our children are [now] either taught to put Britain in the dock or they remain in ignorance of our island story, That is morally wrong, culturally self-defeating – and we would put it right.’
He promised the history curriculum would be overhauled so as once again to highlight ‘the great things that we as Britons have achieved’.
Of course, concerned parents out there, not willing to wait for the imminent Conservative election victory and worried about their kids missing out on some of the great things Britons like William of Orange achieved can buy my The Glorious Revolution: 1688 and Britain’s Fight for Liberty for a mere £7.50 . And…my new book A Radical History of Britain has exactly 73 mentions of Magna Carta. Just £20 in hardback. Out June 09. Lovely.
Using the fabby wordle tool, (on which see Mercurius Politicus’ recent post) I’ve created word clouds of both the bits of Magna Carta still in effect and the original 1215 Magna Carta (well, English trans thereof.) Note how in the 1215 charter ‘barons’ and ‘land’ are rather bigger than ‘liberties’.
I think I’m going to run some other great ‘Charters of Freedom’ through wordle too.
More to follow…
Of course, David Davis’ resignation speech:
‘This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus. The right not to be imprisoned by the state without charge or reason.’
Tony Benn: “I never thought I would be in the House of Commons on the day Magna Carta was repealed”.
Predictably, a whole load of journalists and politicians have been trotting out well-worn cliches concerning the threat to ‘habeus corpus, the idea born in Magna Carta which has inspired every democracy that ever existed.’ (sic.)
I don’t think anyone has put the *actual* content of Magna Carta better than Seller and Yeatman in 1066 And All That:
Magna Carta simply guarantees that ‘due process’ will be followed. If due process involves banging people up for 42 days without charge, that’s fine. Whether this contravenes the HRA is another matter, but given the nature of British law, either way it won’t formally annul a new counter-terrorism act.
Likewise Habeas Corpus, which was not enshrined in Magna Carta but is a piece of late medieval law finally codified in the 1679 Habeas Corpus Act. Writs of Habeas Corpus only demanded that the lawfulness of the prisoner’s detention be examined. Hence, though such writs could notionally have been used during, say, the periods of internment during the First and Second World Wars, they would have been legally useless because of the terms of the Defence of the Realm Acts. The same will apply to the counter-terrorism bill, should it come into force.
I’ve blathered on about all this before. Yes, the counter-terrorism bill is a terrible piece of legislation, but it signifies less a devil-may-care attitude to our civil liberties (though that, of course, is wholly evident) and more the very limited nature of ‘British liberty’ itself.
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)