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Monday, 15 November 2010

Magna Carta and the European Convention on Human Rights

In 2015 Magna Carta will be 800 years’ old. Moves to mark the occasion have already begun with a ceremony held on 12 November in the meadow that is called Runnymede, between Windsor and Staines.

The Guardian’s report of the ceremony calls the history of the Charter “bizarre”, refers to the European Convention on Human Rights (the Convention) as its “modern equivalent” and makes critical remarks about the present government’s commitment to the Convention, concluding “King John probably would have approved.” Some of the comments below the article also raise the chestnut of Britain’s lack of a written constitution.

In order properly to understand the place of the Convention and the British Constitution, it is necessary to understand something of the history of the Charter, which is not bizarre at all but rather goes to the very essence of the nation and is most assuredly something we need to preserve.

It is trite that the original purpose of the Charter was to divide power between King John and the barons in a manner more favourable to the latter. Equally obviously the Charter did not of itself create our modern constitutional arrangements: these evolved continuously from the Charter through (among many other things) de Montfort’s Parliament, Dr Bonham’s case, the Prohibitions del Roy, the Civil War, the Glorious Revolution and the various extensions of the franchise, as well as the rediscovery of classical authors who had been largely forgotten by the thirteenth century.

The concepts which evolved from all those events – including the separation of powers, the rule of law and the restraint of executive power – not only created the unwritten British Constitution, but also were the guiding hand behind many other national charters (the best known being that of the United States), and also the international documents drafted in the aftermath of the Second World War, of which the two most important were probably the Universal Declaration on Human Rights and the Convention itself.

Therein, however, lies the key point. It was that history, with which generations of English lawyers and politicians were infused, which created the idea and, more importantly, the practice of the rule of law and limitations on government power. It was not due to any single document, or a written constitution.

By the most acute contrast, many nations which do have beautifully written constitutions continue by and large to ignore them. Zimbabwe is a case in point. The recent reports of oppression of Christians in Pakistan sit in stark discomfort with the ringing declaration in Pakistan’s constitution which provides unambiguously for freedom of religion for all.

In recent times it seems to me that Britain has had a tendency to disdain its past and to downgrade and denigrate the teaching of history and public law accordingly. Doing so is not merely philistinism; it is undermining the very reason for the rights and freedoms we enjoy and so many other countries do not. To be sure, those rights are imperfect, and even precariously held; but to suggest that this country is anything less than one of the most free and most respectful of the rule of law by international and historic standards is ignorant at best and fatally damaging at worst.

In summary, it is our history, tradition and culture which is the best preservation of our liberties, and Magna Carta can properly be said to be an important event at the early stages of that history. The grand celebrations to mark its octocentenary are therefore appropriate.

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