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Runnymede
‘You mustn’t sell, delay, deny, A freeman’s right or liberty. It wakes the stubborn Englishry, We saw ’em roused at Runnymede!’
RUDYARD KIPLING,
‘What Say the Reeds at Runnymede?’
Where did our ‘rights’ come from? Winston Churchill described the Magna Carta of 1215 as ‘the foundation of principles and systems of government of which neither King John nor his nobles dreamed’. At Runnymede, near the royal home of Windsor, the seeds of British liberty were sown. Centuries before the Enlightenment gave birth to the French Revolution and American Declaration of Independence, and with a fraction of the bloodshed, English nobles persuaded their monarch to cede rights and freedoms that charted a course towards liberal democracy.
Magna Carta was preceded by war between England and France, as King John strove to recover lands lost to the French king, Philip Augustus (Philip II). In pursuing his revenge, John placed an increasingly intolerable strain on what was left of the barons’ good-will and financial resources, already tested by his abuse of feudal prerogatives. John depended on financial and political support from the barons to implement his foreign policy and military strategy. In a deft reversal of his isolation – and excommunication – by the Pope, Innocent III, John turned the tables on both the French and the barons by accepting papal authority over England. Magna Carta was the embodiment of a disingenuous truce, which bought off the barons, kept the French at bay and capitulated to the spiritual authority of Rome. As such, it proved a temporary rather than lasting settlement, and one John had no intention of keeping. His refusal to adhere to its terms led swiftly to domestic rebellion, French attack and his own death.
In reality, Magna Carta’s sixty-three clauses were more concerned with the immediate interests of the barons – feudal rights, tax and trade – than the rights of man. There was no mention of any broader representation beyond the ruling class, no enunciation of democratic principles and no lofty declaration of fundamental rights. Notwithstanding this triumph of pragmatism over principle, 1215 nevertheless marks the historical starting point for the modern debate on ‘rights’. It may not have been consumed by, or the product of, some deeper political emancipation, yet three of its nascent principles – the rule of law, habeas corpus and trial by one’s peers – still represent the earliest articulation of liberty capable of resonating with a modern audience.
Numerous articles throughout Magna Carta sought to subject John to some basic ground rules in the exercise of royal power. The text is littered with articles that restrict the arbitrary use of royal authority and restrain the levying of feudal dues. Article 17 requires courts to be held in fixed location and article 40 expounds that: ‘To none will we sell, to none deny or delay, right or justice.’ This codified the most basic idea of the rule of law – requiring the authority of state to be exercised in a clear, transparent and consistent way, not at the arbitrary whim of those with power. The pervasive value of ‘legal certainty’ is easily overlooked today, as we take it for granted that the law of the land will be applied impartially and consistently through independent courts. But it provides the foundation for all the other freedoms. Predictable rules are essential not just for individuals, but also companies and even government to plan their business and lives around. So, when the government introduced indefinite detention without trial for foreign terrorist suspects after 9/11, the legislation was heavily criticized by the House of Lords, Lord Nicholls stating that ‘indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’.
Likewise, Article 39 of Magna Carta set out one of the earliest constitutional expressions of habeas corpus and trial by jury. The right of habeas corpus – translated literally as ‘you may have the body’ – is the individual’s right to know and challenge the legal basis of his detention by the state. Today, the principle reflects a basic level of due process we expect from the police, in return for their power to interfere with our freedom. If stopped by a police officer, we expect to be told the grounds for our being stopped, let alone any search, arrest or detention. In the overwhelming majority of criminal investigations, the police cannot hold a suspect in detention for more than four days without bringing criminal charges – at that point they must justify the deprivation of the liberty of the citizen. We assume these rights as part and parcel of living in Britain. In other countries – China, Egypt or Syria, for example – dissidents and government critics live in constant fear of being arrested and arbitrarily detained, with minimal checks on the use and abuse of police powers.
Article 39 also bans serious punishment ‘save by the lawful judgment of his peers or by the law of the land’, while Article 38 prevents royal officials prosecuting an individual ‘without producing faithful witnesses in evidence’. These guarantees formed an early basis for the common law model of a fair trial – including the presumption of innocence and the right to elect trial by jury when faced with a serious punishment. If the state wishes to imprison or otherwise punish an individual – depriving him of his liberty – it must prove the criminal case against him beyond reasonable doubt. It is for the state to demonstrate guilt, not for the individual to prove his innocence. Whether the accusation is illegal parking or a bank robbery, a court will throw out on the first day of trial a case brought without the evidence to back it up.
Likewise, the right to trial by jury remains relevant today. In criminal cases, the right to elect a jury – twelve members of the public rather than a single judge – provides a check against both over-zealous prosecutors and the kind of bad law that even a functioning democracy may pass from time to time. People prosecuted for offences that they believe to be harsh, unjust or just trivial – such as dropping an apple core on the street, or selling groceries in ounces and pounds rather than kilograms – still rely on trial by jury today to challenge unfair law enforcement, putting their faith in the common sense of twelve members of the public. These are fundamental safeguards built into our common law system – and manifestly absent from continental European principles of law and justice.
The second relevance of Magna Carta to the modern debate on rights lies in its constitutional character. Replete with quid pro quos, it is premised on the coupling of rights with responsibilities, balancing the interests of the king and his subjects. Magna Carta was framed as a social bargain, explicitly designed as a contract between the king and the barons – ruler and ruled – requiring reciprocal respect. The conception of liberty, or more accurately certain specifically defined liberties, was spelt out through a series of rights that sought predominantly to check the overwhelming or arbitrary exercise of power by the monarch. The barons intended to restrain the meddling of the king in their affairs, and Magna Carta’s overarching aim was to protect their freedom from the Crown, rather than obliging the monarch to do anything in particular for them.
Magna Carta represented a compromise of competing interests, rather than any coherent blueprint for liberal democracy. According to Churchill, the barons ‘groped in the dim light towards a fundamental principle’, which they found in the ‘only half understood’ idea that ‘Government must henceforward mean something more than the arbitrary rule of any man, and custom and the law must stand even above the King.’ Those early freedoms from royal interference subsequently developed into a range of fundamental liberties demarcating the state’s ability to interfere in the lives of its citizens – including freedom from arbitrary arrest and prolonged detention without charge – and outlined the broader contours that would define the relationship between the citizen and the state. Rooted in our history, this basic idea of placing checks on the power of the state, thereby preserving the freedoms of the citizen from interference, are at the heart of the current debates on the limits of state surveillance, the reach of database state, the right of the police to take and retain DNA on innocent people and safeguards on the use of the ever-present coverage provided by CCTV cameras.
The initial constitutional cast set by Magna Carta developed piecemeal, over the following eight centuries, into a model of liberal democracy. Unlike many other countries, Britain’s constitution is not codified in a single overriding document, but made up of a patchwork of laws and conventions that have developed steadily over time. The Petition of Right in 1628 added constitutional bars on taxation without the consent of Parliament and the use of martial law in peacetime. Inspired by Sir Edward Coke – who held the posts of Attorney General and Chief Justice before standing for Parliament – the Petition of Right also provided the earliest protection of individual privacy. Coke’s famous maxim that ‘a man’s house is his castle’ informed the drafting of Article VI, which protected private homes from being forced by the Crown to house soldiers, a longstanding grievance. This established one of the first legal protections against intrusions into the home, on which later common law privacy protections were incrementally built.
Today, we expect that the sanctity of the home will only be breached in the most exceptional of situations warranted by the strict necessity of law enforcement or public safety – not on the whim of some civil servant, quango or local official. Similarly, we expect the state to respect the privacy of our correspondence, internet access and email exchanges, unless there are strong security grounds for interception or monitoring. We recognize the need for the state to gather some information on us, but only on a limited – need-to-know – basis, in order to help fight serious crime and terrorism. Few are comfortable with the idea of giving the state carte blanche to collect, retain and share our detailed, personal and sensitive information. The state is meant to be accountable to the citizen, not the reverse.
Like Magna Carta, the Bill of Rights, passed in 1689 in the aftermath of Civil War and the Glorious Revolution, was another straightforward, unpretentious text addressing in clear and concise terms a catalogue of widespread grievances. A dozen constitutional gripes were followed by thirteen general remedies, as well as redress for particular issues of contemporary concern. The Bill of Rights built on earlier rights. Fair trial safeguards were added, strengthening the independence of jury selection from bias, and requiring the prior conviction of a criminal offence before the imposition of fines or the forfeiture of property. Article 20 of Magna Carta had stipulated that ‘For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood’. The underlying idea was that criminals should get their just deserts, pay the price for their offence, but that the punishment should fit the crime. There must be a limit on the right of the ruler to punish those subject to his rule. The Bill of Rights added to this the requirement that ‘excessive bail ought not to be required, nor excessive fines imposed…’. These early constitutional innovations marked out the British idea of justice as firm but fair. Today, debates about crime and punishment still focus on these basic ideas, whether it is the debate about honesty in sentencing or consideration of the proportionality of criminal punishments.
The same clause of the Bill of Rights added a ban on the infliction of ‘cruel and unusual punishments’, an early precursor to the modern ban on torture. Today, the legal standards applied in the UK, European and UN human rights law developed from this early definition, set out more than three hundred years ago. Students, journalists, political activists and others challenge or protest against the government, confident that they will not be persecuted for their views or political activities, as they are elsewhere. There would be widespread outrage in this country if the state engaged in the kinds of murder or torture of its citizens that take place in many other parts of the world – including Russia, Iran and Sudan. Allegations of torture by British troops in combat are investigated seriously, and UK cooperation with foreign agencies accused of practising torture attracts intense scrutiny.
The Bill of Rights also contains one of the earliest guarantees of freedom of speech, declaring that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament’. The freedom to think and say what we like, without inciting violence or harming others, is fundamental to the idea of liberty in this country. This right – and the related freedoms of worship, conscience and peaceful protest – developed from the early struggle for religious freedom during the Reformation into the modern rights we enjoy today.
From the moment we wake up in the morning and pick up a newspaper, we take it for granted that a full range of competing views and perspectives will be presented on any issue of the day. We expect to hear every conceivable criticism of government and politicians. Consciously or not, we form our own views on the basis of the plethora of information and views regurgitated through an exceptionally free and exuberant media. It is difficult to imagine what it must be like to live under the blanket censorship that hides what is really going on in countries like North Korea. British protection of freedom of speech is also stronger than in many other democracies. In France, for example, there are legal restrictions on the media reporting of the private peccadilloes – and more serious improprieties – of politicians that would be unthinkable in Britain.
The scope for freedom of speech exploded with the advent of radio, television and, later, the internet – the modern medium for social interaction and popular debate, allowing individuals, groups, campaigners and businesses to exchange ideas and opinions twenty-four hours a day, seven days a week, across the world. We take these freedoms for granted in Britain, whereas others cannot. In China, for example, the government censors the internet. So, if you Google the Falun Gong, the banned spiritual movement, the Chinese service provider will direct you to those hits that provide negative commentary. China also restricts internet content on Tibet and those calling for democratic reform. Closer to home, even Turkey, an aspiring candidate for membership of the European Union (EU), censors internet criticisms of Kemal Atatürk, the founder of the country’s modern secular republic, an action that would be unheard of in this country.
From the freedom of speech inside Parliament, under the Bill of Rights, developed our freedom of speech and the right to peaceful protest outside Parliament. For the politically active, peaceful protest – from a single demonstrator through to mass rallies – serves as a means of voicing concerns, grievances or criticisms of the government. It is particularly important during periods of political controversy to allow the ventilation of strongly held views. Governments cannot satisfy everyone. But they can – and should – allow the expression of a full range of competing views. People in this country take pride in the right to peaceful public protest. Even the politically disinterested generally expect the right to be tolerated, however obscure or unappealing we may find the views of particular protesters. It is inconceivable that the tanks could roll into Trafalgar Square to crush peaceful protests against the war in Iraq, as they did in Tiananmen Square during the brutal crackdown on protesters in 1989 that left hundreds of students dead, or that Britain could routinely jail and intimidate peaceful protesters, as Chinese police did to silence democratic voices of dissent during the 2008 Beijing Olympics, at the 2012 London Olympics.
While fundamental rights began to emerge from the thirteenth century, and would become one of the pillars of our liberal democracy, they were not conceived in isolation – they were not the only pillar in the nascent democratic architecture. Magna Carta built on the emerging common law system, created by Henry II in the twelfth century and based on uniform and consistent courts respecting ‘precedent’ – the rulings laid down in previous cases. The common law underpins the rule of law in the UK – with the exception of Scotland, which operates a civil law system – but is also inextricably interwoven with the idea of freedom under law. It is based on a unique and powerful presumption of liberty, the presumption that the individual is free to do anything that has not been expressly forbidden or restricted by law.
The Bill of Rights reinforced the rule of law, by entrenching law-making power in Parliament and restraining the exercise of legislative power by the Crown. It also helped mould a separation of powers between government, Parliament and the courts – a system of checks and balances to prevent any one branch of the state from dominating the others or abusing its power. The Act of Settlement 1701 later reinforced the separation of powers, bolstering both the role of Parliament and the independence of the judiciary.
Above all, the development of freedom under law and democracy in Britain went hand in hand, preserving the liberty of the individual and decentralizing power to the people. The Bill of Rights declared: ‘That election of members of parliament ought to be free’, and required that ‘for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently’. The constitutional design was based on the election to Parliament of those mandated to make the law of the land. Slowly but surely, the number of people entitled to vote in elections expanded. A series of reforms, starting with the Reform Act of 1832 and culminating in the Representation of the People Act 1983, widened the electoral franchise. Women first received the vote in 1918, in recognition of the sacrifices made during the First World War, and the threshold age for men and women was eventually lowered to eighteen in 1969. The Parliament Acts of 1911 and 1949 further consolidated the power of the directly elected House of Commons, at the expense of the House of Lords.
In this way our fundamental rights were originally designed to support, reinforce – but also respect – the other building...
