French Kissing: Helena Kennedy on Magna Carta

As we congratulate ourselves on Magna Carta, let us remember that it came into being 150 years after the Norman Conquest and was probably greatly influenced by the French.

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Magna Carta is all about power. During the anniversary celebrations we have had politicians and judges wax lyrical about this important foundation stone in our democracy, which reined in the power of the king and asserted the principle that no one is above the law. Sadly, it is not true. There are still those who seem to enjoy impunity.

The question that immediately begs an answer is whose power now needs constraint. Who seems to enjoy power without much consequence or restraining? Who operates above the law? The straight answer is that arms of governments still act in ways that ignore the law. We saw it when the Snowden revelations showed that our intelligence communications headquarters, GCHQ, was involved in intelligence-gathering that was outside the law.

There are large tracts of British society that are significantly beyond the control of parliament or the courts. In our globalised world, there are many entities that float above the nation state and its legal constraints. This is made possible because law is still largely located within the nation state. The large corporations have been able to surf the globalisation wave much more effectively than governments. So the big question is: how do you restrain or even manage companies and financial bodies that transcend national borders?

The most visible example of our failure to do so is the fallout from the financial crash of 2008. Financial institutions are extraordinarily powerful. What makes them almost untouchable is that they are engaged in activities most people do not understand. They rely on deliberate complexity to defy investigation and accountability, so that British policing and prosecution authorities are not up to the task and most politicians are befuddled by the whole business.

Prosecutions for evasion of tax, the creation of shell companies and the fiddling of interest rates do not happen because the bank processes are impenetrable for most investigators. If you are prepared to go head to head against large banks, you have to be prepared to face an onslaught of resources against you. It is classic abuse of power, where one side has far more information and resources to outgun the other. In these battles, Goliath always wins. We need the will and the funds to make the law effective.

If you look at the global economy, half the world’s largest economies today are not states, but companies. Walmart is the 28th biggest economy in the world. Such companies are able to transcend national law and regulatory barriers. They have the power to make or break economies so there is rarely the political will to take them on.

Most of the greatest challenges facing the world span borders – international terrorism; environmental damage and climate change; trafficking in people, arms, drugs, human organs; financial chicanery and tax avoidance on a vast scale; issues of migration. The very advances in technology and communications that enable markets to function also enable dysfunction and black markets. Then there are the endemic human rights abuses such as violence against women that involve challenges to patriarchy. They are collective-action problems, requiring collective-action solutions. But international institutions and law are still inchoate. We need more collaboration to create systems of law that can confront wielders of power and secure just outcomes. However, too many powerful vested interests stand in the way.

And if western developed nations with comparatively robust legal systems cannot take them to task, what chance have new democracies with fragile legal infrastructure, as well as weak or corrupt government?

Yet, although we know that we have to create effective international law to deal with these problems, there is instinctive suspicion and resistance to courts beyond our borders. We sign up to treaties and international conventions but do our damnedest not to ratify them or whittle away at their edges to soften their impact. Our nation states play fast and loose with international law. We see it in the current political manoeuvring around the European Court of Human Rights, with the Conservative Party declaring in its manifesto that it will withdraw from its jurisdiction. The spectre of foreign courts and foreign justice is an easy prejudice to stir and it will have wretched consequences.

The interface between national law and international law is an area in need of serious work and political commitment or we are destined to chaos and conflict, as well as ever-growing inequality. So, as we watch the spectacle of self-congratulation around Magna Carta, and hear proud claims about this being an English invention, let us just remember that it came into being 150 years after the Norman Conquest and was probably greatly influenced by the French. Miscegenation makes for better law, and if ever we needed some legal cross-border collaboration, we need it now. 

Now read Owen Jones, Melvyn Bragg, Jesse Norman and Tom Holland on Magna Carta

This article appears in the 04 June 2015 issue of the New Statesman, The myths of Magna Carta