Part I
The historical roots of the case against the Human Rights Act
Chapter 2
The Magna Cartaâs tainted legacy
Historic justifications for a British Bill of Rights and the case against the Human Rights Act
Colin Murray*
Introduction: Weaponising the Magna Carta
Events styled as celebrations often take place, as Lord Neuberger pointed out in the context of the 800th anniversary of the Magna Carta, in a âmutually self-congratulatory bubbleâ.1 The 2015 events proceeded on the basis of Lord Denningâs oft-quoted claim that the Magna Carta is âthe greatest constitutional document of all times â the foundation of the freedom of the individual against the arbitrary authority of the despotâ.2 His sentiment was affirmed by Boris Johnson: â[t]he liberal spirit of Magna Carta is alive ⊠in those magnificent Clauses 39 and 40 that have come to incarnate the freedoms of the individual that we upholdâ.3 And who could object to a celebration on such terms? In this chapter I argue that the 2015 anniversary celebrations instrumentalised the Magna Carta for the Conservative-led governmentâs specific political ends. Events were closely managed by ministers to emphasise the Magna Cartaâs place within the UKâs ancient constitution as a counterpoint to the incorporation of the European Convention of Human Rights (ECHR) into UK law.4 The celebrations therefore advanced the Conservative Partyâs agenda that the Human Rights Act (HRA) needs to be replaced by a âBritishâ Bill of Rights.5
Having examined the significance of the 2015 celebrations I evaluate three facets of the Conservativesâ efforts to employ Magna Carta as a weapon against the HRA. First, the Magna Cartaâs indigenous character has been used as a rallying cry against the incorporation of the ECHRâs âforeignâ legal values through the HRA. Second, because the HRA has been characterised as alien to the UKâs constitutional landscape, the Magna Carta supports claim that the UK has a unique history of constitutional liberty. This lays the groundwork for a bill of rights which reduces substantive rights protections and sidelines the Strasbourg court. Third, the Conservativesâ claims that the UKâs constitutional history makes it a particularly trustworthy country when it comes to upholding human rights challenges the underlying ethos of international human rights protections. The ultimate aim of the Magna Carta rhetoric is to persuade the UK electorate that there is little role for international human rights within the UKâs governance order and, as a consequence, to ease the UK out of the ECHR.
(1) Creating the Magna Carta myth
Even if a direct line cannot be drawn between Magna Carta and the UKâs current human rights protections, lawyers have historically been at the forefront of advancing this national foundation myth. Whereas the âhistorianâs viewâ of 1215 âhas tended to emphasise the self-interested motives of the barons and has generally been sceptical about the charterâs constitutional significanceâ, according to Lord Sumption the âlawyerâs viewâ treats the charter as âa major constitutional document, the foundation of the rule of law and the liberty of the subject in Englandâ.6 The divergence between the popularised Magna Carta myth and the historical reality owes much to the efforts of lawyers, from Lord Coke in the seventeenth century onwards, to instrumentalise the charter in the service of contemporary political causes.7 The Magna Cartaâs usefulness lies the generality of its supposed challenge to unaccountable authority, making the detail of its terms and context of its drafting irrelevant. The popeâs swift annulment, rendering the 1215 settlement ineffective, matters little to the celebrations of its significance for the rule of law. That the security clause, a mechanism for constraining absolute monarchical authority, was stricken from the subsequent 1216 version need not hamper claims that the Magna Carta founded the separation of powers.8 Trial by jury came to be read into the text retrospectively.9 In the 2015 celebrations Conservative ministers regurgitated this Whiggish narrative, casting the Magna Carta as the start of the âbending of the arc in favour of individual rights and freedomsâ in the history of England and ultimately the UK.10
The Global Law Summit of 2015 was not intended to reflect on the Magna Cartaâs place in history but to refresh its âiconic, even mythical valueâ.11 Cass Sunstein has described this process as the creation of a âusable pastâ which underpins national political self-consciousness.12 As the following extract from a Guardian editorial indicates, the resulting constitutional foundational myth has been generally accepted:
David Cameron has called it the âfoundation of all our laws and libertiesâ. Historically speaking, this is bunk. But in so far as it supports the idea that individual freedom is precious and must be defended and passed on, it is genuinely ennobling. Myth it may be, but a virtuous national myth that speaks to the belief that the timeless and magisterial law stands above the flawed ruler, whether medieval or modern.13
Nevertheless, because the principles said to be at work in the Magna Carta are so underdeveloped they can easily be overlooked or even entirely hollowed out. In 1878, in opposition to the deployment of Indian troops in Malta, Gladstone directly invoked clause 51 of the original 1215 charter (calling for foreign knights and mercenaries to leave the kingdom), even though the provision had not been included in the later statutory versions of the charter. By grounding his opposition in the âancient constitutionâ Gladstone evidently âstill thought of Magna Carta as something modernâ.14 As little as 50 years later, however, such claims would have marked him out as a crank. As a sovereign Parliament overlaid the ancient constitution with modern statute, the legal force of the Magna Carta was lost. In Peter Linebaughâs scathing assessment, â[the Magna Carta] ceased to be an active constitutional force and became a symbol characterized by ambiguity, mystery, and nonsense ⊠it became an idol of the ruling classâ.15 Today the charter has become more useful as a means to legitimatise UK human-rights exceptionalism than as a rallying cry for individual liberties.16
(2) Human rights as an invasive species
The supposedly exceptional nature of the UKâs constitutional order was, in the decades before the HRAâs eventual enactment, employed by the opponents of the ECHR to limit its role within the UKâs constitutional order.17 Although he was a leading human rights advocate Lord Scarman had to acknowledge that âthe legislative sovereignty of Parliament ⊠makes it difficult for the legal system to accommodate the concept of fundamental and inviolable human rightsâ.18 In drafting the HRA the New Labour government focused on overcoming the narrative that domestic human rights legislation could not be compatible with the notion of parliamentary sovereignty as the keystone principle of the UKâs constitution.19 For Jack Straw, this difficulty in mapping the HRA to the requirements of parliamentary sovereignty was, above all others, the âelephant in the roomâ during the drafting process.20 The drafters tackled this conundrum by favouring a reinterpretation clause and declarations of incompatibility over any judicial strike-down power.21 As a result, most constitutional commentators have joined Lord Steyn in accepting that â[i]t is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereigntyâ.22 The HRAâs requirement that domestic courts âtake into accountâ Strasbourg jurisprudence was also intended to walk a fine line.23 On one hand, it restricted the UK courts from developing novel and activist approaches to human rights and, on the other, it did not impose an obligation upon domestic judges to slavishly adhere to Strasbourgâs position.24
That the HRA simply incorporated some of the UKâs commitments under the ECHR into domestic law was not a mainstay of the Conservative Partyâs criticism at the time of the HRAâs enactment. Their 1997 manifesto described the introduction of any enumerated list of human rights in domestic law as a âradicalâ change which âcould unravel what generations of our predecessors have createdâ.25 The legacy of successive high-profile defeats for the UK before Strasbourgâs institutions, however, blunted claims that fundamental rights were already adequately protected in UK law.26 The incorporation approach was, nonetheless, a visible effort by Tony Blairâs government to emphasise the limited ambitions of this legislation in an effort to smooth its integration into the UKâs Constitution. Some human rights advocates, such as Sydney Kentridge, QC, complained that the HRA was too timid and that âa new, home...