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16 June 2015

Celebrate Magna Carta, yes: by defending the Human Rights Act

Upholding that European Convention of Human Rights would be the best commemoration of the events of 1215, not dismantling it.

By Chris Bryant

The Prime Minister is notoriously weak on history.  He thought the Americans were fighting the Nazis with us in 1940 (they didn’t join up till December 1941).  He thought America was our oldest ally (rather than Portugal).  And Jon Stewart caught him out on the simplest of questions: what does Magna Carta mean?  Far more worrying than these schoolboy off-the-cuff errors, though, is the pre-prepared speech he made yesterday to celebrate the 800th anniversary of Magna Carta.  Dripping with sentimental British self-aggrandisement, it was more an exercise in nostalgia than in historical analysis and it showed that his ignorance extends far beyond the meaning of the Great Charter’s Latin title.

Not that I buy into the mass glorification of Magna Carta.  For the most part it is a dull, poorly drafted and notoriously ambiguous document.  Its role in British history is regularly and preposterously overstated.  Those who claim it as the founding document of British democracy and moderated monarchy, for instance, seem to forget centuries of our history.  It is a barons’ charter, not a people’s charter.  It says nothing at all about parliament or democracy.  Far from establishing the right to trial by jury and the rule of law or indeed the right to a trial at all, Magna Carta, insofar as it adumbrated these concepts, was systematically ignored for century after century.  The very fact that angry and rebellious subjects were constantly calling for it and its sister the Charter of the Forests to be republished is not proof (as some seem to think) that it was respected or that it was the bedrock of our modern constitutional settlement, but that it was systematically disregarded.  Just as Hamlet thought the Danish habit of drinking to excess should be ‘more honoured in the breach than the observance’, so generation after generation of British rulers concluded that Magna Carta was best ignored.   

Take one apparently unambiguous clause, ‘the Church shall be free.’  It may be the main reason that the Church and King John’s Archbishop of Canterbury, Stephen Langton, devoted so much energy to promulgating the Charter in 1215 and 1225.  The clause might be clear, but when was it ever adhered to?  Successive monarchs tried to impose their preferred candidates as bishops and archbishops, they left lengthy vacancies so as to seize episcopal incomes and they told the Church what to read, what to believe and how to pray.  Long after Henry VIII dissolved the monasteries, his son closed the chantries, his two daughters recast the bench of bishops to their own liking and the Stuarts sought to impose a catholic-seeming faith on the Church of England, Winston Churchill forbade the appointment of George Bell as Archbishop of Canterbury because of his campaign against the aerial bombardment of civilian Germany. 

Just so the concept of a fair trial.  Political imprisonment and summary executions were a standard part of the British system long after King John was dead and gone.  Acts of Attainder saw parliament vote to outlaw, exile, deprive and execute political opponents without anything approaching a proper trial well into eighteenth century, with the Jacobite leader Archibald Cameron of Lochiel despatched as late as 1753 and Lord Edward FitzGerald in 1798. 

Likewise taxation.  If only those great Whig politicians who had trumpeted the idea that thanks to Magna Carta the Crown could not tax England without consent could have seen half an inch beyond their pince-nez to spot that ‘no taxation without representation’ might apply equally to the colonists on the other side of the Atlantic as to freeborn Englishmen.  Or to the people of India.  Or South Africa.  Or any one of the British colonies where fair trial and free elections remained a pipedream for many until we departed the scene. 

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Indeed many basic human rights took a great deal longer to become standard in this country than elsewhere.  Just take the law on buggery.  Here, it was a criminal offence punishable by death from 1533 to 1861 and homosexuality (or ‘gross indecency’) was outlawed from 1885 up until 1967, but in France homosexuality never appeared in the criminal law after the Revolution.  It took a judgement in the European Court of Human Rights for British homosexuals to be allowed to serve in the armed forces.

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So yes, Magna Carta is to be celebrated, but let’s not get dewy-eyed and overly nostalgic about British history.  And let’s not fall for this Etonian sleight of hand that bizarrely suggests that the European Court of Human Rights and its incorporation into UK law in the Human Rights Act has somehow dismantled our historic rights.  At nearly every stage of our history the Tories and Conservatives have defended the rights of the monarch over his subjects, the crown over the country and the status quo over change.  They opposed the chartists, the suffragettes, the trades unionists and the constitutional reformers even as they waved Magna Carta in their face.  The one moment when they broke that habit was after the horrors of Nazism, when Winston Churchill and David Maxwell Fyfe sought to encode British concepts of freedom in a rule of law that would hold indefinite sway across the continent.  Upholding that European Convention of Human Rights would be the best commemoration of the events of 1215, not dismantling it.