‘The good name of human rights has sometimes become distorted and devalued,’ says David Cameron as he takes to the Runnymede podium, standing not only in the shadows of John the King and John the President, but also a one-time school for ‘disturbed girls’ that has retrospectively presented a considerable challenge to the liberties of which the PM lyrically waxes. The good name of human rights has indeed become distorted and devalued; but by whom?
As far as I’m aware, the anglers of England are safe – for now. They can take their tackle to a weir and dip it in without fear of arrest. Similarly, the nation’s remaining monks have no need to devote an inordinate amount of their precious time to worrying about the width of the cloth from which their robes are made. Careless tailoring will not land them behind bars. In truth, the vast majority of the stipulations in a certain scroll signed by King John 800 years ago gradually slid into irrelevance as the centuries progressed; it’s possible few of the more obscure clauses were ever examined in much detail until they finally began to be repealed in the nineteenth century.
The fact that only three of the clauses remain on the statute book in England and Wales may possibly come as a surprise to many, but since the thirteenth century, Magna Carta has always symbolised more than it actually says; it genuinely is one of those few objects of which it can be said that the whole is greater than the sum of its parts. What it represents is more significant than any specific issues relating to fishermen or friars. It is as much an idea as a series of concessions scrawled on a decaying document. Routinely cited by the oppressed, particularly in the USA, as the foundation stone for a brand of democratic law that resists the subjugation of the common people by a higher (earthbound) power, Magna Carter may not have declared that all men are equal, but its reputation has taken on a life of its own that long ago transcended the demands of England’s aggrieved Barons.
But Magna Carta has not just been apprehended by those fighting for their rights and freedoms; it has also been apprehended by those denying them. For David Cameron to stand at Runnymede and announce his befuddled belief that extricating Britain from the European Convention on Human Rights is somehow being true to the spirit of Magna Carta is indicative of the manner in which its symbolism can be played upon. Because so many of the clauses are cloaked in the culture of the time, it has acquired the ambiguity of a religious text; the ignorance that most beyond scholarly chambers have of its finer details leaves it open to interpretation, and all can use it to support their own agenda – including politicians.
The Prime Minister says ‘The limits of executive power, guaranteed access to justice, the belief that there should be something called the rule of law, that there shouldn’t be imprisonment without trial – Magna Carta introduced the idea that we should write these things down and live by them.’
Guaranteed access to justice – an interesting point to make at a time when severe cuts to Legal Aid threaten to deny many who can’t stump-up solicitor’s fees access to justice, not to mention charging people for the privilege of appearing before a magistrate’s court. One of the three clauses in Magna Carta that remain on the statute book forbids ‘the sale of justice’, yet it increasingly seems that only those who can afford to buy representation in court will have access to justice. That Dave should mention ‘imprisonment without trial’ in his sermon is also telling when many within his party were all for the Blair administration’s plans to extend the detention period of terrorist suspects from 28 days to 42. Six weeks being effectively imprisoned without trial. Just as well Magna Carta doesn’t specify the length of imprisonment without trial.
Trial by jury was secured in Magna Carta, but predates it in English law; that said, the right is often attributed to Magna Carta and tentative moves to abolish it in certain cases, primarily fraud trials, were greeted with a barrage of references to Magna Carta. Nevertheless, 2009 saw the approval of the first criminal trial in a jury-free crown court – though it must be remembered that the ‘Diplock Courts’ of Northern Ireland operated without juries for over thirty years.
As well as promising to maintain the freedom of the Church of England, and not forgetting the customs and liberties of London, the other surviving clause not only forbids the sale of justice; it also forbids arbitrary arrest. As ‘arbitrary’ is defined by the dictionary as ‘Based on one’s whim’ and ‘Absolute; despotic’, this would suggest in the context of Magna Carta that arbitrary arrest would constitute arrest without sufficient cause or evidence. I think we’ve all seen in recent years that this particular clause has been somewhat ignored, especially in two areas.
Terrorist and sexual abuse suspects are often apprehended at home when police have received a tip-off that a crime is either poised to be committed or was allegedly committed several decades previously. The evidence upon which the police base their actions in such cases is hardly cast-iron. If they were planning to catch a drug dealer in the act, he or she could only be arrested for possession or intent to supply if there is no evidence of supply having taken place; observe the handover, however, and the crime (as well as the sentence) is far greater. And while it’s understandable that nobody would wait for a bomb to be detonated or a child to be molested before nabbing the suspect, we’re talking largely about the presumption of intent. If the suspect’s home contains explosive materials, the likelihood is he’s planning to use them; if it contains child pornography, does that mean he’s a veteran abuser himself – or does he simply like looking at the pictures?
The anticipation of a crime rather than its execution appears to have become more important now; I suppose it’s what those in the business would call ‘prevention of crime’. But there’s a world of difference between how this phrase is implemented by police and simply ensuring one locks one’s doors and windows when leaving the house to deter burglars. Imprisonment without trial, the sale of justice and arbitrary arrest – hmmm, it would certainly seem Clause 29 (from the 1297 remix) is now with us in name-only, reduced to one of those bizarre, anachronistic old privileges rarely evoked, such as being able to steer sheep across London Bridge.
All Prime Ministers in office for more than one term eventually reach the stage where they begin to consider their ‘legacy’. Five years into the job, David Cameron has the look of a man determined to leave his mark, even if it’s little more than a skid on the landscape. Shamelessly using yesterday’s ceremony as a platform to launch his own legal agenda, he apparently expects the British public to believe him when he declares that scrapping the Human Rights Act and replacing it with one of his own concoction will be honouring the memory of Magna Carta; presumably, this will include the ‘snooper’s charter’ (and how King John would’ve loved that). To paraphrase Nye Bevan, if David Cameron is sincere in what he is saying, and he may be, then he is too stupid to be a Prime Minister.