The Rt Hon Dominic Grieve QC

Speaking up for you, standing up for Britain


15th March 2015

Magna Carta and Human Rights


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INTRODUCTION

It is a great pleasure to have been invited here this evening to talk of Magna Carta and its relevance today in respect both of human rights and of our democracy. To be able to do this after a beautiful evensong service and in the midst of this great cathedral, itself the expression of the flowering of English Gothic architecture and culture in the half century after Magna Carta was enacted is a particular privilege. And as I know from having been able to view it recently, the Salisbury copy of Magna Carta is without doubt the one in best condition, helped by the fact that it was hidden or lost for over 300 years until rediscovered in the 17th century.

That disappearance might reflect the long period in the Middle Ages and Tudor period when the Charter was little referred to. Indeed some argue that its importance may be exaggerated and that we owe less to it than we like to believe when celebrating its 800th anniversary. But as I will try and set out this evening I think such a view is mistaken both in respect of its historical context and the continuing impact it has on us today.

 

A BIT OF HISTORY

King John was not a good man. Thus begins A. A. Milne’s poem in “Now we are 6” that first introduced me to him. Milne may not have laid claim to being a historian and there were certainly no india rubber balls about at the time of King John. But he was not mistaken in his assessment of the man. Even by the standards of his age, where life was by modern norms nasty, brutish and short and princes to survive had to be strong and at times implacable, John emerges very badly.

He was in his early 30’s when he came to the throne in 1199 and in his late 40’s at the time of Magna Carta.  He could, according to the chroniclers, take counsel amiably when he chose. He could be charming and courteous and kingly at times and indeed informally friendly in a rather coarse fashion reminiscent of the last German Kaiser.  This was particularly the case towards subordinates who did his bidding and to whom he could dispense patronage and who posed no threat.  He was not an idle ruler and his charters show a “hands on” approach and a close, perhaps obsessively close, attention to detail, some of it unpleasant-miscreants are to be “hanged from the nearest oak”, Jews to be protected since “even if we give our peace to a dog, it ought to be inviolably observed”.

But the evidence of his untrustworthiness, paranoia, violence and gratuitous cruelty are overwhelming. The contemporary chronicler known as the Anonymous of Bethune, from his own service with an Anglo Flemish lord in John’s service said of him. “He was a very bad man, more cruel than all others; he lusted after beautiful women and because of this he shamed the high men of the land for which reason he was greatly hated. Whenever he could he told lies rather than the truth. He set his barons against one another whenever he could; he was very happy when he saw hate between them. He hated and was jealous of all honourable men; it greatly displeased him when he saw anyone acting well. He was brim-full of evil qualities”.

Today we remember principally the murder of his nephew Arthur in Rouen Castle, the ruthless removal of a close and young dynastic rival. But contemporaries were more appalled by many other similar acts. He it was who concluded his feud with the De Briouze family over land rights in Ireland, by starving to death  Matilda De Briouze, one of the most celebrated ladies of the age and her son with her in Corfe Castle in 1210, treating their lives as forfeit as she could not pay off the fines he had imposed on her husband, who was a fugitive.   There were other examples of extreme cruelty to those at his mercy and of the pleasure he got from causing gratuitous hurt-informing his most consistently loyal supporter, William Marshal Earl of Pembroke that his Steward John of Earley had been killed in a battle, as a joke, when it was in fact untrue.

John was also unlucky. His inheritance of an Angevin proto empire stretching from the Scottish border to Spain was threatened by the rise of a powerful and centralising French monarchy and he proved unable to defend his possessions, leading to both a massive loss of territory in Normandy, Maine and Touraine and of the concomitant revenue. It was his attempts to recover his continental possessions and his exactions by taxation and fines on his own subjects, including his nobility, to finance it, the arbitrariness of his actions and the fear and uncertainty they engendered which precipitated the crisis and civil war that led to Runnymede.

THE CHARTER ITSELF

Much is made today of the fact that very little of the Charter survives in our law. And indeed of its 63 clauses only 4 are still in force today. They are Part of Clause 1 on the Liberties of the Church, Clause 13 on the liberties of the City of London, and Clauses 39 and 40, which are often cited as the defining statements on the Rule of Law and the limits of arbitrary state power. These last two merit being set out in full:

39. 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 against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice.

But the other clauses should not be ignored just because they have not survived in their original form.  They sought to address King John’s unscrupulous behaviour and to place limits on his exercise of power in very marked ways.  Thus clause 9 states that “Neither we nor our officials will seize any land or rent payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt.” Clause 20 provides that “a free man is not to be amerced (fined) for a small offence, and only in accordance with the degree of the offence and for a great offence he is to be amerced according to the magnitude of the offence saving his livelihood and a merchant in the same way saving his merchandise and a villein is to be amerced in the same way saving his wainage if they fall into our mercy. And none of the aforesaid amercements are to be imposed save by oath of upright men of the neighbourhood”. Tellingly Clause 24 states that “No sheriff, constable or other of our bailiffs are to hold pleas of the crown”, an acknowledgement of the need for a separation of powers between the judiciary and executive. You should not do both roles at once.

Most importantly Clause 12 established that taxation could only be levied with the “general consent of the kingdom”. Clause 14 then sets out the means of obtaining that consent:  “we will cause the archbishops, bishops, abbots, earls and greater barons to be summoned individually by letter.”

In his recently published book on the charter, the historian David Carpenter has analysed meticulously the likely foundations from which the Charter sprang. It was of course the fruit of power struggle between King John and his most senior nobles, men who were not themselves free of oppressing others when the opportunity arose in similar ways to the King. But the Charter they extracted at Runnymede was not just a set of treaty terms framed solely for their own advantage. To justify their actions they went back into concepts of justice that they saw as inherent to the realm and land of England of which they were a part and which 150 years after the Norman Conquest they clearly saw as a polity, not just a place where they had estates and wealth. At the end of the Charter, it is the “commune of all the land” that is to assist the 25 barons of the security clause in keeping John to his promises. The clauses speak of the “law of the land”, the “law of the kingdom” and the “law of England”. The law was not laid down in legislation. It was part customary and partly the legal rules that already existed in the courts whose role had been regularised by John’s father Henry II. But its purpose was to offer men full justice although this was according to their status and distinguished between free and unfree. Nevertheless the Charter set out standards of kingship and governance that were supposed to be met. It drew on ideas of good and bad kingship that derived from the Bible and the coronation oath introduced in England in the 9th century, which required the maintenance of peace and justice and which by the 11th century was held to be the “laws and customs of the realm”. The theological and canon law input of the Archbishop of Canterbury Stephen Langton was also apparent. He was a key figure in creating the Charter. It was unlikely to be coincidence that he both believed in royal power, but only that exercised within prescribed limits. In commentaries he wrote on Deuteronomy he had criticised “modern kings, who collect treasure not in order that they may sustain necessity but to satiate their cupidity”.

The Charter, which came as a part of a cycle of civil war and violence interspersed with earlier attempts at extracting concessions from the King and settling with him, did not last long. Within a few weeks John had had it annulled and then abolished by Pope Innocent III, who John had acknowledged as his feudal overlord in order to get his backing.  The rebel barons were excommunicated. King John showed no intention of observing it and the country was plunged back into civil war. By the time he died in 1216, England was part occupied by the French whose crown prince Louis had come over to support the rebels and seize the crown for himself at their invitation and the Charter could be viewed as complete failure in peacemaking.

 

THE LEGACY

But quite astonishingly the ideas in it-those concepts of justice and limited sovereignty survived and were revived. Its first saviour was William Marshal Earl of Pembroke, that great Lord and long suffering but loyal adviser of the king and of his father Henry II and of Richard I and a national hero who ought to be celebrated.  His reputation for integrity was such that he was trusted by both sides. When John died leaving his young son Henry as King, William Marshal was elected Regent by the other members of the Council. Aged over 70 he proceeded to defeat and then through magnanimity conciliate the rebels and  then drive the French out of England. He twice had the Charter reissued in 1216 and 1217 as a promise of his intent that royal tyranny would be curbed. He died in 1219 and is buried in the Temple Church in London, where his effigy is visible today. In contrast to John, the Archbishop of Canterbury could describe him at his funeral as “the greatest knight who ever lived”.

And that description stands the test of time. As a result of those reissues, the issue of a Forest Charter in 1216 that covered royal rights in royal forests and another reissue of Magna Carta in 1225 so that  Henry III could  obtain a grant of taxation, the Charter started to become embedded in national consciousness. By 1226 we have records of knights in Lincolnshire criticising the High Sheriff for the way he was administering justice behaving, “contrary to their liberty which they ought to hold by the Charter of the Lord King”.  Some great lords also felt constrained to issue charters of their own regulating their relations with their under-tenants as Clause 60 expressly provided that the liberties under the Charter “all the men of our kingdom…are to observe, as much as it pertains to them, to their men”. In 1259 the Provisions of Westminster started to specifically protect men from oppression by their Lords. In 1297 the Charter was turned into a statute following yet another crisis over the raising of revenue under Edward I. In 1300 we have Essex peasants invoking it to complain of their lord’s bailiff’s behaviour in the manorial court.

At the same time studies have demonstrated its effectiveness in reducing the monarchy’s ability to rely on fines paid to avoid the King’s rancour or recover land or his benevolence. In 1207-08 they totalled some £22000 (over half the crown’s income) but only £4000 by 1242. This meant that there was now little option for a King but to summon councils, or as they were called by the 1230s “parliaments”, to approve sanction general taxation and this happened with increasing frequency under Henry III. As his financial needs grew so did resistance, with demands from his Barons to choose his ministers and control the expenditure of the money.  This year we also celebrate the 750th anniversary of the Council summoned by Simon de Montfort after he had seized control of King and government following further civil strife between Henry and his Barons, where to validate he issued orders for the election of four knights for each county to be elected to attend parliament to discuss the business of the realm. By the end of the 13th century this practise was institutionalised and the Commons emerged as a distinct body with the right to grant taxes and the power to demand the redress of grievances in return.

Writing in about 1180, an unknown Angevin official stated in the “Dialogue of the Exchequer-an administrative manual, that “the wealth of kings is not invariably theirs by due process of law, but proceeds sometimes from the laws of their countries, sometimes, from the secret devices of their own hearts and sometimes even from their mere arbitrary will; their subjects have no right to question or condemn their actions”.  A hundred years, as a result of the process initiated by Magna Carta that statement no longer reflected the new reality.

As I mentioned at the start of this talk references to Magna Carta rather diminished in the later Middle Ages and under the Tudors. But it had not disappeared. An undertaking to abide the terms of the 1297 reissue was made by every King up to Henry V and the lack of it thereafter is probably that it was now considered settled law that required no repetition. Six statutes in the mid 14th century extended it, in response to pressures from the Commons and ensured its protections extended to all irrespective of status, free or unfree.  In the mid 15th century at the time of the War of the Roses, Chief  Justice Fortescue wrote a treatise, De Laudibus Legum Angliae, (In Praise of the laws of England) for the benefit of the son of Henry VI. He makes no direct reference to Magna Carta but its principles are evident in it and demonstrate an approach of which Amnesty might approve.  He said “The King of England cannot alter nor change the laws of his realm at his pleasure. For why, he governeth his people by power, not only royal but also politic. If his power over them were royal only, then he might change the laws…..such is the dominion that the civil law purports when they say- The prince his pleasure hath the force of law. But from this much differeth the power of a King, whose government over his people is politic, for he can neither change laws without the consent of his subjects, nor yet charge them with strange impositions against their wills. Wherefore his people do…freely enjoy and occupy their own goods, being ruled by such laws as they themselves desire….the power royal restrained by the power politic”.

He also stated that a statute required the consent of the whole realm, deprecated the use of torture, lauded the system of trial by jury and its uniqueness to England, telling the prince that his personal view was that he “would rather twenty evil doers to escape death through pitie, than one man to be unjustly condemned”. His work along with Magna Carta itself, was published in the 16th century. In the oath of office which I took when I became Attorney General in 2010 and which is of Tudor origin, I noted with amusement and pleasure that I was required to say “I will duly and truly minister the Queen’s matters and sue the Queen’s process after the course of the law and after my cunning…I will duly and in convenient time speed such matters as any person shall have to do in law against the Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to the Queen’s matters when I shall be called thereto”. Thus in serving as the Queen’ lawyer and representing her legal interests I was also promising as required by Clause 40 of the Charter not to use my position to delay justice for anyone else.

 

MODERNITY

It was however in the 17th century that the use of the Charter in debate revived. James 1st came from Scotland and appears to have entirely lacked understanding of what Fortescue, had been saying 150 years earlier. When at Newark on his way south for his coronation, he ordered the summary execution of a cut purse, without any hearing or due process of law to the consternation of his English entourage. He had been doing this sort of thing in the Scottish borders when King of Scots. He told Parliament in 1610 that “The state of monarchy is the supremest thing upon earth…(Kings) exercise a manner or resemblance of divine power upon earth”. He believed himself entitled to rule free of constitutional restrictions.  Perhaps no surprisingly it brought, first him and then his son Charles 1st into collision with Parliament and his subjects, particularly lawyers.  Opponents of the King such as John Selden, who wrote a commentary on Fortescue and Sir Edward Coke successively solicitor general,attorney general and Lord Chief Justice looked to Magna Carta to justify their belief in the dominance of parliamentary power and the common law over the monarchy. In 1616 as chief justice, Coke had defied James I, when the King had insisted that proceedings against the crown challenging its right to grant a benefice should be stayed by the court telling him that “the stay required by your Majesty was a delay of justice and therefore contrary to law and the judge’s oath”. He was then dismissed.

Coke went on to be an MP and pushed through Parliament, the Petition of  Right in 1628, which was triggered by the imposition by Charles 1st of a non-parliamentary tax that had led to the imprisonment and prosecution of the Five Knights who refused to pay a forced loan. The Petition proclaimed its illegality and invoked the Charter in condemning arbitrary imprisonment for non- payment. His writings articulated the idea of an “ancient constitution” of the common law of the Saxons, reinforced by Magna Carta and now being subverted. There followed a political crisis that was ended by a messy and failed compromise as both sides interpreted it differently and Charles sought to govern thereafter without Parliament.  Charles next tried to raise revenue through “Ship Money” on the grounds that it was a prerogative right of the crown to demand it to defend the realm and was resisted in this by John Hampden. Hampden lost that case despite invoking the Charter. It was a split decision with four dissenters out of twelve, a cause celebre of its day. It certainly stored up trouble for Charles. When he finally was forced to recall Parliament in 1640 to raise money to fight the Scots, it refused to vote any grant of supply until Magna Carta and the Petition were confirmed.  Political confrontation deteriorated into Civil War. By its end the King had been defeated and executed for the crime of levying war on his Parliament and people. As for the Parliamentarians, they split into factions and many of the same arguments were then repeated between them. There is something slightly ironic of, at the one extreme the Leveller John Lilburne claiming from Magna Carta the “indubitable birthright and inheritance of a free born Englishman” and stating that any legislation passed contrary to it was null and void-an extreme assertion of the existence of some unalterable constitutional document and Oliver Cromwell his earlier ally but now Lord Protector dismissing an objection to a custom duty imposed by the Protectorate in 1656 with the words “your magna farta cannot control actions for the safety of the Commonwealth”.

I must apologise for so selective a canter through this rich period of the early and mid-17th century which makes no pretence at a narrative history. But to do it justice we would be here all evening! But I hope it has illustrated how the Charter returned to the forefront of constitutional discourse in this period. In one sense it was myth, as its use and interpretation bore little or no relationship to the issues and realities of 1215 or for that matter 1297. But the myth was of the greatest potency.  It was capable of being invoked on all sides of an argument.  When James II overrode the Test Acts with his Declaration of Indulgence in 1687 to give tolerance to Roman Catholics it was hailed by its supporters as the “Magna Charta for liberty and conscience”. Its objectors pointed out that it was on the contrary a flagrant violation of an extant statute by an exercise of the royal prerogative and therefore contrary to the Charter. When Parliament final established its primacy in the Bill of Rights of 1689, after the overthrow of James, it was to the Charter that reference was made for justification. It began by criticising James for having endeavoured “to subvert and extirpate the Protestant religion and the Lawes and liberties of this Kingdom”. Its 13 clauses then went on to create the powers and privileges Parliament enjoys to this day and to assert the primacy of the law and to protect the individual from cruel and unusual punishments. Subsequent statutes gave Parliament control of the armed forces, ensured regular elections to Parliament and gave judges security of tenure to ensure their independence. In the words of Igor Judge, our past Lord Chief Justice and of Anthony Arlidge who have together written a book just published on the Charter “the ideas for which Magna Carta was the inspiration had triumphed”.

Since then the Charter has continued to be invoked on many occasions in connection with political and legal rights. The Great Reform Act of 1832 was associated with its principles and the Chartist movement that demanded universal male suffrage, equal constituencies, paid MPs and annual parliaments in the 1840s, deliberately took its name from it. The Suffragettes used the Barons demands at Runnymede as a precedent for their own and scenes of Runnymede appear in their leaflets.

The principles in the Charter and the Bill of rights have also been readily exportable to Britain’s colonies where it was early established that all the protections of the common law applied, even if the individual state could also enact its own legislation. The Maryland Assembly in 1638 incorporated Magna Carta as part of its law. When the United States achieved its independence its Bill of Rights consciously reflected the rights in the Charter.  The Fifth Amendment to the Bill of Rights of 1791 saying, “nor shall any person be deprived of life, liberty, or property without due process of law” clearly echoes Clause 29. Most recently the US Supreme Court invoked the charter in respect of the case of Rasul v Bush in 2004 in relation to detention at Guantanamo Bay. It stated that “executive imprisonment has been considered oppressive and lawless since King John at Runnymede pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or the law of the land”.  As I saw at the recent Global Law summit in London, which I helped organise, it is a shared inheritance in every common law country and furthermore respected and understood to be of global importance in many states which have civil law systems.

 

ITS VALUE FOR US TODAY

Today the Charter is not the place to which free born Englishmen will necessarily first turn for the protection of their rights.  Claimants usually go to court to invoke their rights under the Human Rights Act and the ECHR, an international Treaty, signed up to by 47 European states and which the HRA has incorporated into our domestic law. The 10 key rights set out in the Convention cover, the right to life (Article 2), to protection from torture (article 3), slavery (article 4), punishment or imprisonment without due process of law (article 5), the right to a fair trial (article 6), freedom to manifest your religion and belief (article 8), freedom of expression (article 10).

This list of rights although usually met with approval, has not, however, exactly made the Convention universally popular. It is routinely denounced in some sections of the press and by some politicians as a foreign import despite the key role played by British lawyers in drafting it. I have on a number of occasions been told that it is quite unnecessary for us to adhere to it, as in this country our Liberties are quite sufficiently protected by Magna Carta, Habeas Corpus the Bill of Rights of 1689 and the Common Law.  It is argued that, in the way it is interpreted, it interferes with Parliamentary sovereignty and confers excessive rights on the undeserving, preventing the State from protecting the wider community from the threat from dangerous and undesirable individuals.

But the reasons why the UK helped draft and signed up to the Convention are entirely in line with the reasoning of those who created or those who subsequently revived Magna Carta.  In the aftermath of the Second World War, there was the greatest anxiety that the tyranny and abuse of rights and freedoms that had characterised the period should be prevented from recurring in future. It was Eleanor Roosevelt who in promoting the UN charter of Fundamental Rights and Freedoms described it as a “Magna Carta for the 20th century”. It was in order to give the aspirations of the UN Charter some possibility of implementation in practise, that the member states of the Council of Europe created the European Convention and agreed between themselves by treaty that its terms could be interpreted by an international tribunal, the European court of Human Rights in Strasbourg and bound themselves to observe its rulings in a particular case. It was the same impulse which allowed them later to agree to the right of individual petition which gave citizens the possibility of access to the Strasbourg Court that had hitherto only been available to Member States of the Council. As we have seen with Magna Carta, the interesting thing was that the Barons were prepared to accept limits on their own power, in return for creating a more predictable set of rules governing relations with the king. In the ECHR as in most treaties the state parties accepted potential checks on their own actions in return for the security that others would likewise be bound.

As has been often pointed out, those 10 key rights I listed, with the exception of Article 8 on privacy, are in reality a classic exposition of the Liberties which successive generations of Britons have taken to be their birthright.  But how well they were in practise maintained through the centuries and how accessible was redress when they were violated is far more questionable;-there have been plenty of examples in our history of their violation. But this national narrative has been so powerful that it has usually acted as an almost mythic restraint on successive British governments trying to curb freedoms when tempted to do so by threats to public order or national security as we saw over 90 and 42 day pre charge detention under the last government.

It is doubtless the case that most Britons considered in 1950 that our Common Law tradition of liberties upheld by a democratic parliament offered a superior level of protection for freedom than any continental model. So in signing up to the Convention we were doing something new. We were intent, at the risk of innovation, through the creation of rights that we ourselves enjoyed as liberties, not so much on protecting ourselves but on setting a standard of behaviour for states towards their citizens that could be universally applied. The decision was not uncontroversial. There was unease as to how it would work. Contemporary Foreign office advice expressed fears that the Convention might be subverted. It said:

“To allow governments to become the object of such potentially vague charges by individuals is to invite communists, crooks and cranks of every type to bring actions”.

But as we know today, the ECHR has created its own dynamic. By converting liberties to rights it has facilitated their ownership and assertion by individuals rather than their invocation as abstract principles against administrative or policy decisions. The anger of the tabloid press at undeserving claims from crooks or cranks is the inevitable corollary that claims by the deserving can now much more readily be made. Deservingness cannot be determined a priori. Some argue that this has taken the interpretation of the Convention by the Strasbourg Court and our own courts to places unintended by the original signatories. But it seems to me that it was quite clear from the outset that this was understood. It has been the intention and policy of successive United Kingdom governments over the last two centuries to seek to make the World a less dangerous, more predictable and better place by encouraging the creation of international agreements governing the behaviour of States. According to the Foreign Office, whom I once asked, since 1834 they have records of some 13,200 treaties and agreements that the UK has signed and ratified. They range in importance from the UN Charter and the International convention on the Prohibition of Torture or the creation of the International Criminal Court to local treaties over fishing rights. Over 700 contain references to the possibility of binding dispute settlement in the event of disagreements over interpretation-as does of course the ECHR and for that matter as did Magna Carta which in its original form provided for a council of 25 to keep and cause to be observed the “peace and liberties” granted under it!

I would add that so important has been this treaty making that the Ministerial Code specifically states that it is the duty of UK ministers and civil servants to respect our international obligations. The late Lord Bingham who was Lord Chief Justice described this duty as being a key underpinning of the Rule of Law. We should be proud it is at the forefront of the way government is conducted in our country.

This is not to say that everything concerning the Human Rights Act and the ECHR is perfect. Valid criticisms have been made by our own judiciary that the Strasbourg Court has failed to respect national differences of interpretation of the Convention, which should be allowed under the principle of the margin of appreciation and failed to appreciate sufficiently the practical limits of its authority if it gives judgments which contradict settled democratic will in areas where the margin of appreciation might be reasonably considered to apply. Prisoner voting comes to mind as an example of this.

In part the Strasbourg Court has, I think, been the victim of its own success as it has been transformed from an international tribunal dealing with a very limited number of cases into final court of appeal for some 700 million people. In service to what has been an understandable desire to protect human rights in countries with challenging records,  it has sometimes micro-managed the Convention too much and sought to impose a uniformity of practise that is undesirable in the interpretation of an international treaty that specifically gives to national parliaments and courts the primary obligation to uphold it. But there are good signs that following a review of the Convention and the working of the Strasbourg Court which culminated in the Brighton Declaration of 2012 led by my colleague Ken Clarke, change is occurring. The court’s backlog of cases for processing is substantially down. Recent judgments from Strasbourg such as that upholding our national ban on political advertising show a growing willingness to respect the reasoned decisions of senior national courts.

But these problems are really outweighed by the good that the Convention is doing more widely. A moment’s examination shows the extent of its reach. From Azerbaijan, where the Court ruled in 2013 against the government for imprisoning, after an unfair trial, an opposition leader Mr Mammadov for inciting a riot, after he had published a blog post, contradicting the government’s version of what had occurred at the event; to Rumania where the Court found a violation of the Right to Life where a severely handicapped young man was allowed to die through gross neglect in psychiatric hospital, the Strasbourg Court is helping to improve human rights. Despite the fact that some of its judgements are implemented slowly, the evidence suggests that political pressure from the Council of Ministers (a modern version of the council of 25 Barons?) eventually leads to success in this regard. The authority of public judgements is helpful in changing the behaviour of authorities in the states concerned. For all its challenges the Convention has proved and is proving to be an effective tool-perhaps the single and most cost-effective one currently available for promoting human rights on our planet.

This does not, however mean that Magna Carta is redundant. As its principles can be clearly discerned in the text of the Convention, so its citing can add weight to arguments when important freedoms are called into question. Last year understandable anxiety on the threat posed by alleged terrorists returning from Syria and Iraq led to suggestions that they should be excluded from their homeland even if they were not convicted of anything and were British born nationals. Fortunately good sense prevailed, as rendering a person stateless by excluding them from their country of birth is a breach of our international obligations under the ECHR and the International Convention on Statelessness. But a helpful argument is there in the Charter-Clause 42 “It is to be allowable for anyone henceforth to depart from our kingdom and return safely and securely, by land and by water, saving our faith, save in time of war for some brief time, for the common utility of the kingdom, except those imprisoned and outlawed according to the law of the kingdom…”

In his History of the English Speaking People, the historian and journalist Paul Johnson wrote:

“the extraordinary attachment of the English to their system of law (if indeed it can be called a system), the positive affection it inspires, the awe inspiring confidence, often unwarranted, which they repose in its ability to do justice, the tenacity, indeed the ferocity with which they refuse to modify it with foreign importations is one of the most important national characteristics”.

He went on-“In a sense the law is the only true English religion-the only body of doctrine in which the mass of ordinary Englishmen have consistently and passionately believed. It is impossible to turn to any period of English history where written records have survived, without finding a huge and dogged conviction in the adequacy of the law, if only, and this is the vital qualification it is administered according to tradition and custom….”

On the evidence of my 18 years in parliament I agree with his analysis.

So we have reason to be very grateful to those who drew on their vision of what the “law of the land” was in 1215, to frame Magna Carta. Not only did they initiate a process which has created a discernible line of beneficial rights and liberties carried down in various forms to the present day and growing like a rolling snowball as it has progressed, but they offer us a mirror in which we can see today that the challenges we face and which divide us in debate are not new. Precedent, much used in our courts suffuses our national life and makes change when it comes much easier to manage. In this 800th year of Magna Carta we have much to celebrate.

DOMINIC GRIEVE