A Magna Carta Challenge

Magna Carta is, we are told, “important”.  It is “fundamental”.  It is sometimes even “important and fundamental”.

 

Is it?  And if so, how?

 

With the 800th anniversary coming up next year of the sealing of the original document (though what we commonly call Magna Carta is actually from 1297 and not 1215), it seems as good a time as any to set a challenge. So here it is:

 

When was the last legal case, if any, that was determined by the fair trial right set out at Article 29 of Magna Carta?

 

Put differently: when was the most recent English legal case (either at first instance or on appeal) where the “ratio” was Article 29 of Magna Carta?  That the outcome of the case would have been different but for the application of Article 29 of Magna Carta?

 

Article 29 provides:

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 other wise destroyed; nor will We not 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.

 

 

There will be those who say this is “to miss the point”.  I call them “Magna Carta symbolists” (as “Magna Carta sentimentalist” would be perhaps pejorative).   For the Magna Carta symbolist, it does not matter that few if any have ever relied on the fair trial right set out at Article 29, it is still symbolic all the same.

 

Against this view there are (I think) two points.

 

First, when a symbol has no substance, then it can be easily contested – even contradicted.

 

For example: even though politicians and judges often cite Magna Carta as the “cornerstone” or “foundation stone” of liberty, no voter or litigant ever gets to rely on this supposed right.  In this way, Magna Carta is just as “symbolic” of the lack of enforceable rights than the basis of such rights, if not more so.

 

Second, it is a sorry set of affairs when the supposed foundation of one’s liberties is of no practical use.  Yes, symbols can be important – and, following Bagehot, some parts of the constitution are perhaps more dignified than efficient –  but that surely should not be the case with the right to a fair trial.  A US citizen is not content to merely adore the Bill of Rights; he or she can got to a court and insist on his or her rights being recognised.

 

In fact, we are so used to being told that Magna Carta is “important” and “fundamental” that we have not noticed that what we are nodding along with is not worth anything at all.  But because we think it is s “important” and “fundamental” we shrug at the prospect of having enforceable rights.

 

As it stands, there is nothing whatsoever stopping Parliament from legislating in breach of Magna Carta, and while judges garnish their judgments and speeches with references to Magna Carta, they will always either groan at or mock any party to a case that dares to rely on it in court.

 

So as a “Magna Carta empiricist” (or “realist”), this blog poses the challenge: what has Article 29 of Magna Carta ever done for us?

 

 

Notes

My FT post on the myth of Magna Carta (free to access but registration required).

(The above challenge is in respect of English law (which also normally applies to Wales); but the challenge is also posed for any jurisdiction where Magna Carta forms (or has formed) part of the law.  I am not qualified in Scots or Northern Irish law, and so do not know whether Magna Carta forms part of those legal systems.  Similarly, I am not able to say if it forms the law of the United States, the rest of the former British Empire/Commonwealth, any other common law jurisdiction, or even that of Jersey, Guernsey, or the Isle of Man.  But if Magna Carta is somehow part of the law in any jurisdiction, I would be delighted to hear if it has ever been relied on in an actual case.)

 

 

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24 thoughts on “A Magna Carta Challenge”

  1. As I said on 15/6/14 in response to your tweet on Magna Carta:

    ‘The Levellers (yes, them again) saw through MC 365+ years ago: “A beggarly thing containing many marks of intolerable bondage”.’

    So MC in whole, not just parts, has been found wanting for centuries, in this one example by a political group (similarly highly romanticised and sentimentalised by some in later generations, including the present) who knew what they were talking about, whether or not they were as fully knowledgeable about constitutional law as law practitioners, advocates and academics, then or now.

    MC didn’t prevent the Leveller leaders being arrested, tried, imprisoned whether trial or not, tried, exiled outside mainland jurisdiction to name just the most serious consequences of the Law being used against them.

    We shall see in the next year or so whether those claiming to be modern-day inheritors of the Levellers say anything about MC and whether it is “important and fundamental”.

    There will also, no doubt, be many discussions in many mediums about ‘the English Constitution” but don’t expect any discussion about German-style Basic Laws (yet).

  2. Closest thing I’ve seen to it being cited as a source of an enforceable right is the Court of Appeal in ex p. Muboyayi [1991] 4 All ER 72 where at para 87 Lord Donaldson said re: c.29 “The duty of the courts is to uphold this classic statement of the rule of law and if, in particular circumstances, a writ of habeas corpus is the appropriate procedure for doing so, it is wholly immaterial that the practical effect may be the same as enjoining the Crown.”

    Woolf LJ in ex p. Naghdi [1990] 1 All ER 257 mentions applicant sought to rely on MC and art. 6 rights but there they seem to be interpreted as informative of the right general approach rather than providing an enforceable right.

    Hobhouse LJ in Re B (Minors) (Wardship: Power to Detain) [1994] 2 FCR 1142 at para 1150 said words to the effect that c.29 is the origin of the right of the individual to liberty without proper and legally justified reason to deprive it. This was cited approvingly in Delaney v Delaney [1996] 1 All ER 367 at para 374.

    It also seems from Weld v Hornby [1803-13] All ER Rep 360 at para 362 that the origin of weirs being a public nuisance is c.23. Alas as that was repealed in 1969 future litigants may need to find authority elsewhere to deal with the weir-menace….

    1. Michael – thank you for taking the time to post this comment (you originally tweeted the same points).

      The first three, on c. 29, are for me examples of the tendency of judges to garnish their judgments with Magna Carta. None of them seem to me to have c. 29 as their ratio.

      The fourth is, as you say on c. 23, not c. 29: and the other chapters of Magna Carta have been relied on from time to time (before repeal). This rather perhaps adds to my point at chapter 29 not being the basis of a court’s decision. Other parts of Magna Carta have been relied on by litigants…

      1. David – two points:

        Firstly, admittedly obiter, the fact that the Court of Appeal as recently as 1990 were willing to suggest that a writ of habeus corpus could be used to enforce a person’s c.29 rights surely suggests that there is at least the potential for reliance.

        Secondly, perhaps the reason there are so few cases is that over the course of 800 years the concept has become so ingrained in the British system that no recent breaches of the right afforded by c.29 exist, and hence nobody has sought to enforce it? It seems an unfairly high bar to require a case in which a right has been enforced to give legislation affording such a right legitimacy; if the right isn’t breached, does it not exist? (I know this is all sounding rather falling trees in the woods…) Could its existence not be it’s own enforcement, if it alters behaviour and informs process to the extent that it is universally respected by default?

        1. Thank you for your thoughtful comments; my responses:

          1. The writ of Habeus Corpus is not from Magna Carta. It was a later innovation.

          2. In one way this is the “elephants in the garden” fallacy. I say some device works at preventing elephants from coming to my garden, and as there are no elephants in my garden, it must work! But more seriously, c. 29 of Magna Carta is still law and so, presumably, still can be relied on. But it never is. I find that curious for a supposedly fundamentally important guarantee. US citizens can rely on their Bill of Rights, and those rights are litigated routinely.

  3. Ah, at last, the chance for this thwarted lawyer to cross swords with the great DAG:) I am quite a fan of the Magna Carta, having held a 1294 copy in my bare hands on a visit to a Texan billionaire’s house (A picture of my hairy hands on it here – http://instagram.com/p/QkGIUHKlz7/)

    I’d submit that a close reading of Magna Carta is absolutely pivotal in one of the most important anti-slavery cases – The case of Somerset vs. Stewart, 1772. (1772( 98 ER 499 – a full copy is here, should you be inclined to look – http://www.commonlii.org/int/cases/EngR/1772/57.pdf ).

    In essence, a lack of Parliamentary acts around slavery in essence forced a re-examination of everything from whether a slave was a person for the purposes of habeus corpus through to whether slaves were in fact “Villeins in Gross” under common law. Both sides are reported to have quoted Magna Carta in their oral arguments.

    The abolitionist argument in court was that while slavery existed lawfully in the colonies, there had never been an act of parliament legitimating it in England, and there was no common law justification for it either. They argued that the categories of Villein had been abolished, and therefore all men were “free men” by the terms of common law, entitled to protections and habeus corpus.

    The slave owner’s lawyers agreed that (somewhat to their own amazement) there was no act of Parliament legalising slavery, but sought to argue that Colonial laws had effect in England, and even if they did not, slaves were akin to the common law status of “villeinage in Gross”, as laid down in Magna Carta.

    In delivering his judgement, Lord Mansfield said:

    “There is now at last an attempt, and the first yet known, to introduce it into England; long and uninterrupted usage from the origin of the common law, stands to oppose its revival.

    All kinds of domestic slavery were prohibited, except villenage. The villain was bound indeed to perpetual service; liable to the arbitrary disposal of his lord. There were two sorts; villain regardant, and in gross: the former as belonging to a manor, to the lord of which his ancestors had done villain service; in gross, when a villain was granted over by the lord. Villains were originally captives at the Conquest, or troubles before.

    Villenage could commence no where but in England, it was necessary to have prescription for it. A new species has never arisen till now; for had it, remedies and powers there would have been at law: therefore the most violent presumption against is the silence of the laws, were there nothing more. ‘Tis very doubtful whether the laws of England will permit a man to bind himself by contract to serve for life: certainly will not
    suffer him to invest another man with despotism, nor prevent his own right to dispose of
    property.”

    I’d argue that without Magna Carta’s codifications of these statuses – and especially the famous article 29 – then the Slave owners would have won the case.

    Of course, that fact that any kind of Parliamentary slavery act would have been held to be legal, and thus would have rendered the whole case void rather neatly supports DAG’s conclusion that Magna Carta does not prevent parliament from acting against the interests of British subjects…

    Incidentally, the judgement, which caused uproar at the time – Lord Mansfield’s house was burned down, and it caused fury in America, whose laws were effectively diminished to no more than “municipal” status – is also reportedly the source of the quote “Let justice be done, even though the heavens may fall”; it is one of those cases where judges in effect “made” the law, rather than interpreted it.

      1. When discussing the codification of assorted statuses – Villeinage etc – he is referring directly to the text; equally, I’d say when he talks about the “origin of common law”, Magna Carta is what he means.

        1. I will have a close read to see whether c. 29 was the real ratio of this case, even though Lord Mansfield does not cite it in his judgment.

          It would be quite the omission for (perhaps) the most celebrated judge this jurisdiction has ever produced to not mention the legal instrument on which his most celebrated judgment turned!

          1. Fearfully punching above my weight here, but…

            Perhaps in the context of the time it would be so bloody obvious – as much as to say that water is wet, grass is green, etc. etc. that “origin of common law” *is* Magna Carta that for Lord Mansfield and is peers it was understood without saying.

    1. William, at the risk of going off on a tangent, does Magna Carta itself have anything to say about slavery? My understanding is that it does not. Passing mentions of villeins perhaps, but nothing about slavery.

      One possibility is that it does not mention slaves because there were none at the time. However, according to Jeremy Black in “The Slave Trade”, there were still slaves at Peterborough Abbey in the 1120s. Whether there were any by 1215 or 1297 I do not know. Nor (after 5 mins on google) do I know if anyone knows. If indeed Magna Carta countenances slavery, it would be ironic if it was relied on in Somerset’s case.

  4. Coke CJ includes it in his argument against the King’s powers in the Case of Prohibitions (1607), specifically citing clause 29 on due process. You can see a report of the case online here – http://www.bailii.org/ew/cases/EWHC/KB/1607/J23.html – with the standard citations being 77 ER 1342 and 12 Co.Rep. 64. The case itself was brought because the King thought he could rule on the true construction of the Acts of Supremacy which circumscribed religious freedom, and were the basis of certain powers of the Archbishop’s court, the Court of High Commission. The Judges of England said the King could not sit as a judge just because it was the ‘King’s law’, so my money it’s a foundational case on the rule of law in the UK.

  5. Surely the significance of Magna Carta is historical, that it was the first time that the rule of law had gained precedence over the divine right of kings. It’s possible that England would have gained this in some other way, but perhaps not for another few centuries.

    Of course it was an embryonic principle, and I don’t know enough history to say whether it was useful in the 13th-18th centuries. Is the right of trial by jury linked to Magna Carta? Did the common law evolve from rights enshrined in Magna Carta? I assume so but may be wrong.

    The fact that the rule of law is now unquestioned in the UK means that this element of Magna Carta has been superseded. It no longer needs to be cited unless someone was to challenge the supremacy of the legal system. So it’s redundant and important historically at the same time.

    1. I’m with you on this. The importance is historical, but as DAG has restricted the grounds of his challenge to that of the court of law, and then only in respect of specifics, rather than general statements, on the outcomes of actual cases. It also disallows those, such as politicians, or activists who have used their perception of some of the principles of Magna Carta to frame constitutions and causes. However, I’m not quite sure those of us who believe the importance of Magna Carta lays outside these narrow grounds have to go along with this ancient practice of allowing a contestant to define their own field of battle. So I bring in another lawyer’s take on this subject and it’s influence on English law.

      You can see barrister Harry Potter’s viewpoint on the legal importance of Magna Carta in the first episode of his BBC series “The Strange Case of the Law”.

      From 44:30 onwards

      https://www.youtube.com/watch?v=IPo6e4GT-co

      As for the idea that those in power can ultimately override any provision of the Magna Carta then well, of course. Only fundamentalist religions (and pseudo-religions) allow for the establishment of eternal and (at least in theory) unchallenged principles and laws which can never be over-ridden. Magna Carta isn’t such a sacred text. The control is ultimately that of government being answerable to the people, and that’s more an enlightenment principle, most notably from the works of John Locke. It would be shocking indeed that a text established in the 13th century was directly applicable to modern day law. The past is surely something from which to learn, not something to be dictated to by.

  6. Magna Carta was transcribed into Irish Law as the Magna Carta Hiberniae in 1216. It is still part of the common law in the Republic of Ireland. [Source: Constitutional Law of Ireland, Ford and Leonard, pp 22-23]

    I am not a lawyer and I have no idea if it has ever been cited. Since we have a written constitution (yay us!) any provision of statutes enacted before the 1937 constitution can be struck down as being inconsistent with it. I assume therefore that the Magna Carta Hiberniae is only of symbolic importance, informing the thinking behind the constitution rather than forming a part of it.

  7. Let’s call this a “sentimentalist defence”?

    Why is symbolic importance, important? You seem to dismiss symbolism as empty and potentially harmful.

    First, you appear to misunderstand the way that the common law actually develops: by principled incremental steps so that it is both forward (how best we can develop the law) and backward looking (how well do our developments fit what has gone before). It may not be “important” now but this is to miss the historical importance of a charter enshrining fundamental rights that informed the development of our law of natural justice. It is unlikely that the rules against bias and the common law right to a fair hearing exist in the form they do without the input of magna carta. We can see in Somerset v Stewart that the courts consider this a foundation for the common law and the necessity to cite this origin, once it has been developed and expanded in different forms is not to say this origin does not exist, or that it has (or has had) importance.

    A second point to consider: why we need a “bill of rights” and why the HRA 1998 does not live up to the requirements. A “bill or rights” is symbolism, aspiration and law in one (see Klug [2007]). We might say there are three important features (see Alston): that 1) it provides protection of important (here, procedural) rights and 2) there is some degree of bindingness and 3) they provide a means of redress. It appears that you have a primary issue with point 3).

    I am nor sure if you are familiar with the traditional “red” and “green” light theories of administrative law? I don’t think these are wholly good models: in any event they have began to merge (Lord Steyn [2002]). A better view is an “amber” theory: a dialogue theory. In this way the courts and the legislature engage in a form of dialogue: there are both political and legal controls that work both inside and outside the courtroom. You cannot simply, and without empirical backing, assert that the political controls are of no effect (I will not make a similarly weak counter claim). I think your claim that jury trials are irregular is unfounded and you would need evidence to back up this assertion: the statutory exceptions relate to jury tampering and have been used rarely. What we can recognise is that the symbolic, historical and cultural importance of magna carta cannot be swept aside politically and is recognised as a foundational principle in administrative and constitutional law.

    The key point you miss is that it is not just legal and political power (which I argue do exist) but also a symbolic role of signifying what the country stands for. In this sense, where the HRA fails, magna carta represents a “home grown” and therefore “owned” outline of important (procedural) values. It forms a strong national narrative that is otherwise absent and represents the beginnings of the rise of our political constitutional, democratic monarchy.

    What this means is that, even without legal and political enforcement of common law procedural rights and even if we reject that magna carta has had an important impact on the development of the common law, even if you reject it as the origins of the common law and reject as mere pretence references to magna carta in case law there is a strong symbolic case for a home grown document, otherwise lacking in English law, that represents, symbolises and justifies the values that are important to us. That is the symbolic case for magna carta. It is buttressed by case law, common law history and a good descriptive and normative account of how our modern administrative and constitutional law actually works today.

  8. I left this on your other site, as I refuse to accept the premise of your challenge. However, for the benefit of this blog……..

    I see you have set a ‘Magna Carta Challenge’ elsewhere, asking for examples of Magna Carta being relied upon directly within recently decided cases (as any decisions in the last 200 years must be relative to the 800 year history of the Charter – and (relatively) very few cases are reported before then). I’m not falling for that as I do not accept the assertion that runs through this piece and your other blog.

    To say that Magna Carta is only ‘symbolic’ or a matter of ‘mythology’ unless its actual provisions have been relied upon by the courts in the last few centuries is two dimensional reductionism and ignores what the common law is. It is rather like challenging a common lawyer to point to a decision in the last ten years (a comparable period relative to the history of the Charter) that not only cited Donaghue v Stephenson but which would have gone another way but for the speeches in that case. While I have not the time or inclination to trawl through tort precedents since 2004, I’ll wager that while it might (sparingly) have been mentioned, it has never been determinative within that period.

    Does that mean that Donaghue is a mere symbol or a myth? Of course not. Donaghue is and remains the foundation of the modern common law of tort. It is unnecessary to rely on it – and it will almost certainly make no difference to the decision in a trial or an appeal – because it goes without saying. By which I mean that no lawyer would ever seek to argue that the neighbour principle cannot found an action in tort; rather, they will present evidence and argument as to how it can be applied. In doing so, while they will very likely apply to recent precedent, the ratio of Donaghue will be left unmentioned: not because it does not apply but because the common law has moved so far beyond it.

    Similarly, while Article 29 may not have been determinative in any case in modern legal history, that is not to say that it does not have significance in law (not myth) as the origin of fundamental principles of the common law: trial by one’s peers, habeus corpus and the rule of law itself. (Or, perhaps more accurately, the first point at which those principles were conceded as going beyond mere promises of a ruler in his Coronation Oath but basic provisions of law that bound him and his successors.)

    Moreover, the granting of the Charter holds an ongoing significance in law and governance: that the Crown is subject to the law. Those involved in the ‘Great Rebellion’ of the 17th century, the ‘Glorious Revolution’ and other movements did not appeal to the Charter as myth: they appealed to it as the most significant (though perhaps not the first) point at which the Crown conceded and codified into law this fact. Yes, it may not originally have had the application of a statute (although it unquestionably has been incorporated into statute since, as you concede in citing Bancoult); it may have taken decades to have reached its current form; and it may not have been seen as having the same significance in 1215. Yet it was properly seen as the origin not of a myth but of timeless legal principles.

    While there is an element of myth and symbolism in every historical celebration, the principles of the Charter left a lasting legacy on England, the common law and the principle of the rule of law throughout the world. That is surely something to be celebrated.

  9. It has cited in various cases including Lumba’s case [2011] UKSC 12 to justify giving relief.

    It was also a central issue in the Bancoult litigation, concerning whether the Crown could use the royal prerogative to exile those with a right of abode. Ultimately the case was determined on other factors, but Magna Carta was certainly a fundamental issue.

  10. Late to this party, but I’m with Francis Hoar. I find his analogy with Donoghue v Stevenson quite convincing.

    The concept of liberty only being constrained by the (properly enacted) law of the land, and subject to adjudication in courts of law, is a key element of natural justice and the rule of law, both of which are elements of the common law, and finds expression in many areas, perhaps most obviously these days in Articles 5 and 6 and Protocol 1 to the European Convention on Human Rights, which certainly have been the ratio for recent cases.

  11. Well , you wanted a codified consitution. The House of Commons Political and Constitutional Reform Committee has published this report – “A New Magna Carta?” – today: http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/inquiries/parliament-2010/consultation-new-magna-carta/

    Before you dismiss this as MagnaCartaBalls, look at the three sections in Part II of the Appendix, setting out three different ways it could be done:

    (a) Constitutional Code – a document sanctioned by Parliament but without statutory authority, setting out the essential existing elements and principles of the constitution and workings of government. (drafted by the Cabinet Office and given some official status – a Royal Charter, perhaps, or Order in Council?)

    (b) Constitutional Consolidation Act – a consolidation of existing laws of a constitutional nature in statute, the common law and parliamentary practice, together with a codification of essential constitutional conventions. (a proper Act of Parliament, as entrenched, or not, as the European Communities Act and Human Rights Act)

    (c) Written Constitution – a document of basic law by which the United Kingdom is governed, including the relationship between the state and its citizens, an amendment procedure, and elements of reform (adopted by referendum provided for in an Act of Parliament).

  12. Does anyone know how to prosecute a breach of magna carta?
    In Australia we have serious corruption in the Courts. Perhaps it could be used. Yes, our governments are supposed to stop any Court corruption, however in real terms that does not happen.
    There is an elderly academic who specialises in embezzlement of Crown monies, and also govt corruption, whose life could perhaps be saved.
    I very much doubt that any Judge in Australia would give a moments thought to any plea in favor of the magna carta being used.

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