What influence does Magna Carta have on modern-day court judgments?

  • 0 Replies
  • 1150 Views

0 Members and 1 Guest are viewing this topic.

*

Offline the leveller

  • Global Moderator
  • *****
  • 4111
  • +75/-0

What influence does Magna Carta have on modern-day court judgments? Kevin Bonavia looks at some recent cases.



Amidst all the attention recently poured upon Magna Carta, culminating in last week’s festival at Runnymede, there can be no doubt as to the importance of its influence in the development of the rule of law in this country and far beyond. But what relevance does an 800-year-old charter have on today’s practitioners of law?

The original Magna Carta is not expressly recognised in today’s law: it barely survived the summer of 1215, with King John resiling from his agreement to grant a series of concessions on grounds of duress. But a weak Crown needed to earn consent from both the church and the nobility and further, shorter versions were granted by John’s successor Henry III. It is the 1225 version that was later encoded into statute by Edward I’s parliament in 1297, and it is the bare remnants of this statute which survive today.


Advertisement
 



Of the 61 provisions set out in the 1215 version (as divided and numbered by Sir William Blackstone in 1759), most were repealed between 1828 and 1969 on grounds of obsolescence, for example the restriction of fish weirs on rivers (a significant barrier to 13th-century trade), but three remain on the statute book.

First, the freedom of the church is confirmed: ‘…that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable.’ (Chapter 1, 1215 and 1225.) This issue was of crucial importance to the governance of England at a time when the church owned substantial land and administered its own courts. Since the Reformation, the Church of England has been welded to the state with the monarch as its supreme governor, and this provision is likely to remain dormant perhaps until steps are taken to disestablish the Church of England.

Second, the pre-existing liberties and customs of the City of London are confirmed: ‘The City of London shall have all the old Liberties and Customs [which it hath been used to have].’ (Chapter 13, 1215; Chapter 9; 1225.) As per the freedom of the church, it is unlikely that this provision will be engaged in argument until such time that there may be moves to integrate the City into wider London government.

Third, perhaps the most famous of all: ‘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.’ (Chapter 39, 1215; Chapter 29, 1225.)

These are the words that inspired English parliamentarians in the 17th century and American colonialists in the 18th century to achieve revolutionary change in limiting the arbitrary power of government.

Yet, as profound as these words are, they are rarely cited by our courts and still less applied in their decisions. A recent search of reported cases over the past 450 years yielded around 160 citations and no examples where a case was decided on Magna Carta alone (Joshua Rozenberg: Magna Carta in the Modern Age, British Library, 2015).

A recent example of one such citation was by the master of the rolls in rejecting the argument made in reliance on Magna Carta by one of the Occupy London protesters camping in St Paul’s Cathedral churchyard in 2011 (The Mayor Commonalty and Citizens of London v Samede & Ors [2012] EWCA Civ 160): ‘He also says that his “Magna Carta rights” would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case.’

Whilst judges are likely to ignore attempts to pray the aid of Magna Carta without relevance, in a recent Supreme Court case, (Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12), Lord Collins cited Chapter 39 as a one of a number of ‘fundamental rights’ in holding that the government had been breach of duty in the exercise of its power of detention of foreign national prisoners pending their deportation.

Given the rarity of these citations as a whole, one might fairly assume that the ‘fundamental’ nature of Chapter 39 is merely an ornament used by judges by way of emphasis when a right so obvious as no detention without due process has been violated.

Another reference to the fundamental right found in Magna Carta was a Court of Appeal case (Secretary of State for Justice v RB & Another [2011] EWCA Civ 1608), in which Lady Justice Arden stated: ‘The right to liberty of the person is a fundamental right. It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the [European] Convention [on Human Rights].’

Just as medieval monarchs were compelled to reconfirm the provisions of Magna Carta, so its provisions have found expression in later legislation, thereby obviating the necessity of direct reference.

But that necessity may come to the fore again as the government wrangles over how to amend or repeal the Human Rights Act: nothing is so fundamental that it cannot be repealed by parliament, if no longer by an all-powerful and capricious monarch.

In the coming debate over human rights law in this country, now may be the time for both judges and lawyers to state the fundamentally obvious by referring to Magna Carta more often.

Kevin Bonavia is an associate in the commercial litigation, civil fraud and asset recovery department at Peters & Peters Solicitors






Readers' comments (2)


Nicholas Hart25 June 2015 05:23 pm

Two comments, one pedantic, the other more fundamental:
1 if we are talking about Magna Carta itself, we should not forget that it is both articles 39 and 40 which are still extant - the 1297 enactment condensed these two into the single s 29 still on the statute books.
2 more fundamentally Kevin uses the correct translation of disseisiatur (disseised of his freehold) as it appears on the statute book, unlike the 'deprived of his possessions' in almost every other translation used in publications today - arrant nonsense. This is a huge difference. It is my personal view that it was the mistranslation, appearing in the US constitution that allowed US mortgagees to buy in forfeited property for their personal benefit, rather than the UK law which requires a sale to a third party and an accounting for profit. To me article 39 is the bedrock of the rights of freeholders, and deserves much more credit than to treat it as an historical irrelevance.





Paul Randle-Jolliffe25 June 2015 08:54 pm

Thank you for this article, very interesting, thoughtful and pertinent not only as it is 2015 (800yrs since Magna Carta 1215) but also since I was the Magna Carta appellant mentioned.

The interesting thing is that the master of the rolls significantly misrepresented my case in his judgement and omitted entire sections that were not about the Magna Carta, leading legal commentators to brand me as they did. When I raise this with them they go all quiet or say in shock that is no way for a judge to behave.

I had lawyers mocking me for using the word "disseised" LOL, READ THE LAW as it writ GUYS, its your job.

Let me put the Magna Carta bit simply, my case was that the Church and City had been able to defend and maintain their liberties but mine and others were run roughshod over.

The MOR did a really good job on fudging the judgement even though he asked me which parts of 1297 I wished to rely on and I said all 3, but then discounting two sections as relating only to the city and church, where as the supposed church one is not just the church the second part had the bit he said does not exist at least not in a court of law and is there four times.

He also said I said law does not apply to me, he made that up. I never did.

And that he did not understand the lack of a proper mayor of the city despite him having the evidence from the cities own records. Re May 1215 City Charter

Plus he ignored other parts of the appeal including a submission put together by a professor of law, not attributed deliberately.

IN FACT THERE WAS NO PROPER JUDGEMENT JUST SLIGHT OF HAND on what is now ironically being seen as a constitutional issue, I brought a constitutional case and it was ignored basically.

As Access to Justice Act 1999 does not allow refused permissions to be appealed at the supreme court, the supreme court directs you to the ECHR, as if its relevant for the ECHR under the HRA to deal with a British Constitutional matter. I did not bring a HRA case.


IF THE MAGNA CARTA IS IRRELEVANT then it ALL IS, including to the City and the Church. Uh Oh I be they would defend that, they do they rely on it however they do not need to get it to court.

However I refuse to accept that it is irrelevant , even the prior MOR now says it is relevant , now as President of Supreme courtm that Gov is undermining MC with legal aid cuts, took him two years to get the message. But hey that was my argument, hate to tell you but I told you so!

I frankly when I read his judgement thought maybe the MOR cannot read properly or worse.

For me the core of the issue is that EU civil law is incompatible  with English Common law, one cannot survive with the other. Even judges are now talking about this, they are very different systems.

Maybe the MOR really did not understand or maybe he fixed it, or maybe he had lost the love of our law, to much time in law civil

I would be interest in the case and many other issues being properly analysed and discussed rather than the MOR being parroted.





 
Share this topic...
In a forum
(BBCode)
In a site/blog
(HTML)


SMF spam blocked by CleanTalk