The Magna Carta is 800 Years Old – Is It Time For A ‘British Bill of Rights’?

Jan 27, 2015

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

The Magna Carta turns 800 in 2015 – that’s older than embarrassing uncle Kev who always seems to go too far with the dance moves at family weddings. A lot of people hold the Magna Carta in high regard, particularly when it comes to the question of an English ‘constitution’, but what exactly happened when King John signed the Magna Carta back in the 13th century?

Time for a (very quick) legal history lesson. The Magna Carta was a peace treaty, between King John and the barons’. The barons’ were a bit ticked off that the King’s will was law – meaning people could be punished because the King wanted them to be (think Joffrey from Game of Thrones). John lost a bit of land to the French, and, using his will, raised taxes for a military campaign. This was unsuccessful. Cue some angry barons’ whose pockets were lighter and rebelled against the King being above the law.

Fast forward a couple of months to June 1215, and King John signed the Magna Carta, promising protection from illegal imprisonment, access to justice and limits on taxation. The Magna Carta set a precedent: nobody, not even the King, was above the law.

The Magna Carta is a topic of much debate – though King John had no intention to stick by the principles (evidenced by the breakout of the First Barons’ War) the Magna Carta has been interpreted as the document that established the principle of the rule of law and also sowed the seeds for parliamentary democracy.

It would be wrong to term the Magna Carta as a ‘British Bill of Rights’ – this is merely a glossy interpretation of the document. Rather, rights of citizens in the UK are granted by Acts of Parliament and through supranational bodies such as the European Union. As a result, the UK’s ‘constitution’ is flexible and relatively easy to amend. For example, should Dave, Nick and their pals in the coalition which to create a new Act of Parliament that overrides the Bill of Rights 1689, they are perfectly within their rights to do so. In practice, they may find it slightly difficult to push such an Act through Parliament. Additionally, rights granted to citizens through membership of the EU could easily be taken away if the UK were to leave the EU.

But just how flexible is the constitution? The Human Rights Act 1998 essentially codified the European Convention on Human Rights (ECHR) into law, but David Cameron is keen to repeal this Act and replace it with a new ‘British Bill of Rights’ in order to give Britain control over the laws it implements. What Cameron doesn’t realise is that Tony Blair introduced the Human Rights Act to give the UK courts a greater role in deciding cases related to the ECHR, without the need to go to Strasbourg. Oh well Dave, maybe this year you’ll finally get a hang of your job…

Nevertheless, Cameron’s readiness to introduce a British Bill of Rights raises the question as to whether the flexible constitution stemming from the Magna Carta needs to be replaced. Does the uncodified, flexible constitution have any place in modern Britain?

There are arguments for and against. In a stereotypical British manner, those who don’t wish for codified constitution revert to the ‘if it ain’t broke, don’t fix it’ argument. Having said that, those who desire a British Bill of Rights say that the messy arrangement of common law, Acts of Parliament, European treaty obligations and traditions and conventions is too complicated; rather there should be a single document that details the rights of people and government.

On the flip side, you only need to glance across the pond to the Second Amendment (the right to bear arms) to see how a Bill of Rights can become out of date. Supporters of keeping the constitution as it is point to its ability to resolve problems as they arise and say a complicated amendment process will hinder progress and change. Again, the example of the United States comes to mind – a supermajority of two-thirds in both the House and the Senate are needed in order to amend the constitution.

But is it too easy to amend the UK’s constitution? ‘Elected dictatorship’ is a phrase that supporters of a British Bill of Rights throw around, arguing that governments, not parliament, implement reform to suit their ideology – one just needs to remember New Labour and the Constitutional Reform Act 2005 that got rid of all but 97 hereditary peers in the House of Lords. A codified constitution would also put ‘checks and balances’ on governments that possess huge majorities.

Opponents, on the other hand, argue that there are numerous unwritten checks on politicians, and a codified constitution would politicise the unelected judiciary (again, see the US where the President appoints Supreme Court judges based on ideology), and would see them pass judgement and even change the interpretation of the constitution through their rulings.

It’s a tough one right? Almost like choosing between Maltesers and Minstrels! Both forms of constitution have their pros and cons, but it’s unlikely that the UK will go another 800 years before there’s a major upheaval in the constitution. Pass the popcorn, guys…

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