This information is presented through the courtesy of the Runnymede Borough Council and the Magna Carta Trust - Hon. Secretary Tim Williams
Magna Charta Trust
Saturday 16 June 2001
My Lord Bishop (Bishop of Guildford), distinguished guests, ladies and gentlemen.
With my office of Master of the Rolls comes ex officio chairmanship of the Magna Carta Trust. It is a role that I am delighted to fulfil and it is a great pleasure to welcome you all here today to the Magna Carta Trust's tri-ennial re-dedication ceremony.
The Magna Carta has become a symbol of the common law, not only in this country and in America, but also in the many countries that have adopted our system of law. It provides a common heritage of freedom and liberty for all of those governed by common law, a heritage which alone is worthy of celebration.
The progress and development of the Magna Carta is readily traceable through the Centuries. The Charter of Liberties, as it had become, was re-issued by Henry III in 1225 and entered the Statute Book under Edward I. In 1297 another statute put the charter into a special position, giving it precedence over other Statutes
By 1354, in the Statute Book of Edward III, words are found which echo through the ages, both in this country and around the world:
"Item, that no man of what estate or condition that he may be, shall be put out of land or tenement, nor take nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law."
In 1416, a year after his famous victory at Agincourt, Henry V declared that:
"The Great Charter ...shall be firmly holden and kept in all points"
This was, however, the last time that successive monarchs confirmed Magna Charta.
The 17th century saw a new battle between the King and the Parliament and the idea of "fundamental rights" and of a "fundamental" constitutional law taking precedence over ordinary laws gradually became eclipsed in England by the concept of absolute Parliamentary Sovereignty. The role of the independent judiciary was seen as essential to maintaining the common law principles of the rule of law, but the courts remained subordinate to the Executive in Parliament.
The surest and most effective safeguards of human rights, according to Dicey and Sir Ivor Jennings, was the benevolent exercise of administrative discretion by public officials, acting as platonic guardians of the public interest, accountable through their political masters to the legislature and people.
Although a rights based ideology was rejected by successive generations of governors of the United Kingdom, in favor of the benevolent exercise of administrative discretion, it became a potent force across the world. In the mid-18th century Blackstone, writing of chapter 39 of the Magna Carta had to say:
"And lastly, (which alone would have merited the title it bears of the Great Charter) if protected every individual of the nation in the free enjoyment of his life, his liberty and his property unless it be declared forfeited by the judgment of his peers or the law of the land."
These words were picked up almost verbatim in the American Bill of Rights and 1791, and just over 200 years ago the spirit of the Magna Carta crossed the channel to France. In 1950, Independent India's Constitution, to the displeasure of British Constitutional Lawyers of the time, contained enforceable fundamental rights.
Rights based legal philosophy has never entirely left these shores and it gained real impetus once more in the wake of the second world war, when it was profoundly influential on the international plane.
On 26 June 1945 the United Nations charter was signed in San Francisco, although the advent of the cold war meant that the two UN Conventions on Human Rights were not ready for signature until his 1966 and did not come into force until a decade later. Following the second world war, the Council of Europe was formed which obliged its members to accept the principles of the rule of law and the enjoyment by all peoples within their jurisdiction of human rights and freedoms.
One of the first tasks of the Council of Europe was to draft a legally binding human rights convention for Europe, conferring enforceable rights upon individuals against sovereign states. It was clear that state sovereignty could no longer be permitted to shield the perpetrators of crime from international liability and that governments could not be allowed to shelter behind traditional argument that what a state does to his own citizens or to the stateless is within it’s exclusive jurisdiction. The passage of the Convention was, perhaps unsurprisingly, not easy.
Despite the fact that the Convention was largely drafted by United Kingdom lawyers, it did not meet with universal acceptance in the United Kingdom. Detractors from the proposal for an enforceable European Convention, and these were both numerous and influential, saw themselves as protecting the integrity of the British Constitution, the common law system and the British Empire against subversive European influences.
The right of individual petition to a European court was the real stumbling block in the United Kingdom. Sir Hartly Shawcross, The Attorney General, saw the right as
"wholly opposed to the theory of responsible government."
However the tide was changing in Europe and the United Kingdom Government agreed to ratify the Convention on the crucial condition that the right of individual petition was not accepted. On 8 March 1951 the United Kingdom became the first Government to ratify the Convention and the Convention came into force on 23 September 1953. It was not until 1966 that the United Kingdom Government formally accepted the right of the individual petition to the European Court.
The right of individual petition, once domestic remedies had been exhausted, did not incorporate the Convention into domestic law and British Judges were still denied the power and responsibility of safeguarding Convention rights. The call for incorporation quickly followed and was first made publicly in 1968, and was repeated throughout the 1970's and 1980's. That United Kingdom judges were unable to influence the developing body of European Convention case law, and that it was only the United Kingdom and Ireland that had not incorporated the Convention into their domestic law, created a compelling and widely supported case for incorporation.
Despite the growing academic and judicial support for incorporation, it was not until the 1990's that real progress was made in House of Commons towards incorporation
In 1993 John Smith gave a lecture entitled "A Citizens Democracy" calling for
"A new constitutional settlement, a new deal between the people and the state that puts the citizen center stage."
On 18 December 1996 a Consultation Paper titled "Bringing Rights Home", set out the case for incorporation, and in October 1997 there followed a White Paper "Rights Brought Home: The Human Rights Act".
I am sure that most if you know that in October of last year the Human Rights Act 1998 finally came into force in England and Wales. The Act has the effect of allowing specified Convention rights to be directly enforceable by individuals in the British Court.
Ultimate Parliamentary Sovereignty has not been affected by the Humans Rights Act. The court is required to have regard to European jurisprudence in respect of a Convention right, and to seek to interpret domestic legislation in a matter that is consistent with that jurisprudence.
Where legislation cannot be interpreted in such a way as to make it compatible with a convention right, the court has no power to strike down or to ignore that legislation but will make a declaration of incompatibility, bringing to Parliament's attention the fact that legislation is incompatible. It remains the job of Parliament to amend the legislation.
This was not an Act conceived in a time of political crisis, nor one obtained sword in hand, but an Act that nonetheless represents the culmination of many decades of careful negotiations, following on from many centuries of legal development.
The Human Rights Act 1998 has already had an impact on our domestic law, perhaps not in the outcome of the majority of the cases, but there can be no doubt that the process of thought and language of the courts reflect much more clearly the individual rights that are in question, that fall to be considered, and that have been considered.
That the outcome of many cases has not been affected in more instances is a reflection on the noble tradition that we have in this country of upholding the rule of law and developing human rights - most of our laws were already compliant with the Convention rights and we have as great a respect for human rights as any of our European and world-wide neighbors.
As Lord Cooke of Thornton said in a decision of the House of Lords dated 23 May 2001, Regina V. Secretary of State for the Home Department, ex parte Daly
"Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilized society. Conventions, constitutions, bills of rights and the like respond by recognizing rather than creating them."
Nonetheless, the direct consideration of Convention rights and the European jurisprudence concerning those rights by the courts has had a significant, if not overwhelming, impact on decisions made. Declarations of incompatibility have been made, and appellate courts have criticized lower courts for failing to be robust enough in their application of the Human Rights Act.
In the case of Daly (above), The House of Lords found that the Court of Appeal (which included me in its constitution) had not sufficiently given effect to the concept of proportionality when considering whether a policy introduced by the Home Secretary was unlawful. Lord Steyn said:
"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. The differences in approach between the traditional grounds of review and the proportionality approach may ... sometimes yield different results. It is therefore important that cases involving convention rights be analyzed in the correct way."
The Human Rights Act does not simply pay lip service to the concept to fundamental rights for the individual, enforceable by the courts against public authorities. It is an Act that has already, on occasion, given teeth to rights that the common law system strives to uphold. In that way it perpetuates the fundamental principles of human rights first enshrined in the Magna Carta, nearly 800 years ago, and even echoes the text of the Magna Carta itself, which provided (at clause’s 39 and 40):
"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
"To no-one will we sell, to no one deny or delay right or justice."
As ex officio Chairman of the Magna Carta Trust I am delighted to be here today to celebrate the continuing relevance of the principles that can be traced back to the Magna Carta, and as Master of the Rolls I am delighted to be in a position to uphold those principles, as they have evolved into our modern day system of law.
Return to Home Page