The United Kingdom needs a new Magna Carta.

Transcription

1 The United Kingdom needs a new Magna Carta. Introduction: Originally conceived as a peace treaty between Kings and Barons, the 1215 Magna Carta, incidentally became idealised as a supreme constitutional concept that lay the foundations for the Rule of law and Parliamentary Democracy, both in Britain and overseas. Ironically, the Charter only has mythical status, than supreme legal effect 1. Only a few provisions of the 1297 Charter (re-issued by Edward II), are part of Statute law today 2. Its time myth became reality: Britain needs a new Magna Carta. The time could not be any riper for change; with rapid constitutional upheaval, it is necessary to define and delineate the powers of the state as it negotiates major reform on matters relating to Devolution and the EU. Additionally for citizens, it is necessary for a new charter to protect them from the pervasive power of the state, especially in this new digital age. But most importantly, 800 years of History has taught us, that this new charter should not be more honoured in the breach 3. 1 Joshua Rozenberg, 'Magna Carta in the modern age' (British library 2015) < accessed 29/05/ Magna Carta (Statute 25 Edw. 1) 1297.

2 Ripeness for Reform: Dawn Oliver argues that a new Magna Carta, or an equivalent codified constitutional document, is not necessary, since Britain is not facing a major constitutional crisis that concerns the public s attention 4. On the contrary, this current government is radically engaging in major constitutional change that will inevitably affect the livelihoods of British people. For example, a feasible Brexit from the EU, immediately raises questions over Britain s legal, economic and social future; an issue not merely in the domain of constitutional theory. Equally, the independence agenda of the SNP, strikes doubts as to the continued existence of the very United Kingdom, and suggests that supposedly constitutional statutes, like the Union with Scotland Act , will be repealed out of a whim. In this light, constitutional reform is immediately necessary, especially if change is implemented at such breakneck speed. Indeed, we only need to remind ourselves of how the Blair Government ripped up the constitution in a matter of minutes 6, with the constitutional 3 Edward Fennell, ' Is Magna Carta more honoured in the breach? ' (The Times Student Law 2014) < accessed /29/05/ House of Commons Political and Constitutional Reform Committee, Consultation on A new Magna Carta? (7 th Report of Session , House of Commons, London 2015) Union with Scotland Act Ian Duncan-Smith, Leader of the Opposition, Hansard, HC Deb 18th June 2003.

3 revolution of New Labour. The time is now for a new Charter to provide stability to the British Constitution. Why? Principally because the state must not overtake the public interest in deciding whether to bring about major change. It should be stressed that a new constitutional settlement should not be a panacea to answering questions like whether Britain should be a part of the European Union; rather it should establish a key principle: that the state should engage in principled reform in a way that does not abuse the flexibility of the current uncodified constitution. Thus, GAC Griffith s argument that the British constitution is just what happens 7, is an undesirable feature of any constitution, because it is a recipe for continual instability. Citizens redress: A new Magna Carter must deliver a new emerging aspect of rights facilitation. Chapter 29 of the 1297 Charter resoundingly establishes that the state should deprive no freeman of the right to life, liberty and property without the due process of law 8. This iconic chapter has been lauded by lawyers as an enduring principle of Liberty that has become the bedrock for liberties under the common law. Paradoxically, this provision of the original charter only has limited legal value in the modern age; for a new liberty has emerged: the right to online privacy. In a delirium of anti-terror measures, state surveillance has become unduly pervasive. For example, Edward Snowdon has revealed that 7 House of Commons Political and Constitutional Reform Committee, Consultation on A new Magna Carta? (7 th Report of Session , House of Commons, London 2015) Magna Carta (Statute 25 Edw. 1) 1297 (chapter 29).

4 various government organisations retain metadata, private data accumulated through ordinary internet activity. Rightly this has led to major criticism, even from the founder of the web, who advocates for a snooper s charter for ordinary online users who are being preyed upon by government intelligence agencies 9. Why can this right not merely be protected through conventional means? First, because conservative lawyers, like Lord Sumption, believe that remedies available through the European Convention of Human Rights (typically through article 8), would be radically misinterpreting the boundaries of its legal acceptability 10. Secondly, some would argue that online privacy is not regarded as a conventional human right at all. This is fallacious. Any medium by which the state unduly intrudes in our lives, has typically been asserted as unlawful and contrary to the respect for human dignity. This must be considered in a new Charter; for fundamental values are envisaged to be timeless and free from major qualification. This ultimately suggests that a digital Magna Carta is not breaking new ground. 9 Alex Hern, 'Tim Berners-Lee urges Britain to fight 'snooper's charter'' (The guardian 2015) < accessed 29/05/ Lord Sumption, 'The Limits of Law' Sultan Azlan Shah Lecture (Kuala Lumpur 2013)

5 Reconciling sovereignty: The doctrine of Parliamentary sovereignty poses an immediate barrier to the enactment of any codified constitutional settlement. Yet, as asserted in the Jackson litigation 11, Dicey s chauvinistic conception of Parliamentary sovereignty is out of date. However, we should not necessarily rush to produce an entrenched codified constitution. Rather, according to Kings College University, a suitable arrangement would be for a Constitutional Consolidation Act 12, which would negotiate a settlement between two undesirable extremes. One extreme is that Magna Charter becomes a constitutional code; but History reminds us that the risk associated with non-compliance of the Charter s terms means that a new Magna Carta could die in vain 13. Additionally, fully fledged codification will disproportionally restrict the flexibility of Britain s current unwritten constitution. Therefore, an appropriate balance lies in statutory reform, which ironically embraces the paradox of the 1297 Charter: that despite currently being only of historical value in a court of law 14, it still has mythical status today. 11 R (Jackson) v Attorney General [2005] 1 AC House of Commons Political and Constitutional Reform Committee, Consultation on A new Magna Carta? (2 nd Report of Session , House of Commons, London 2014) 13 Shami Chakrabarti, 'Magna Carta and human rights' (British library 2015) < accessed 29/05/2015

6 Conclusion: The Magna Carta was a means of constitutional dialogue between those in authority and those subject to it. This is reflected by its numerous reissues. Whilst the Charters developed petty regulations for medieval society, they collectively became recognised as a supreme rule: that the crown is not above the law. But this rule has been easily broken. The Magna Carta needs to be reissued as a statutory constitutional settlement, to act as constitutional brake against the whims of the political establishment and to more securely uphold the Rule of Law in a modern age. Words: Joshua Rozenberg, 'Magna Carta in the modern age' (British library 2015) < accessed 29/05/2015.

7 Bibliography: Statutes: Magna Carta (Statute 25 Edw. 1) 1297 Union with Scotland Act 1706 Reports: Ian Duncan-Smith, Leader of the Opposition, Hansard, HC Deb 18th June 2003 House of Commons Political and Constitutional Reform Committee, Consultation on A new Magna Carta? (2 nd Report of Session , House of Commons, London 2014) House of Commons Political and Constitutional Reform Committee, Consultation on A new Magna Carta? (7 th Report of Session , House of Commons, London 2015) Cases: R (Jackson) v Attorney General [2005] 1 AC 262

8 Journals: Lord Sumption, 'The Limits of Law' Sultan Azlan Shah Lecture (Kuala Lumpur 2013) Websites: Chakrabarti, Shami. 'Magna Carta and human rights' (British library 2015) < Fennell, Edward. ' Is Magna Carta more honoured in the breach? ' (The Times Student Law 2014) < Hern, Alex. 'Tim Berners-Lee urges Britain to fight 'snooper's charter'' (The guardian 2015) < Rozenberg, Joshua. 'Magna Carta in the modern age' (British library 2015) <