Magna Carta: The troubled journey to an independent judiciary

In day one of a major new series: The Independent Guide to the UK Constitution, we explore the rights of citizens

All’s fair: Justices of the Supreme Court (Peter Macdiarmid/Getty Images)

In popular perception the Middle Ages was a time of lawlessness and cruelty. And to a degree, that characterisation holds true. Crusades abroad, ill-disciplined governance at home, England in the early thirteenth century was not exactly enlightened.

The creation of Magna Carta in 1215 is all the more remarkable against such a backdrop. An unpopular king brought to heel by a written agreement sounds much too good to be true – and it was, in the short-term, with peaceable discussions giving way to civil war within a matter of months.

Nevertheless, the legacy of the charter signed by King John and the barons at Runnymede 800 years ago has been compelling, both in this country and beyond. The original agreement may not have protected rights and freedoms in the detailed way which modern-day myth occasionally suggests, but it undoubtedly set Britain on a road towards non-autocratic government.

In particular, Magna Carta achieved acceptance for two key principles. The first was that regal authority should be limited by – and separated from – the will of the people. In the immediate context of the early 1200s, that meant that taxes could not be raised without the “general consent of the realm” – and for realm read barons and the church. Even so, as a guiding principle, it was crucial.

The second fundamental doctrine was that individuals were entitled to be treated in accordance with the laws of the land and would, when accused of wrongdoing, be judged by their equals. Again, the contemporary impact of this element of Magna Carta – the famed clause 39 – was limited to the minority of British citizens who were “free men”. However, it confirmed the notion of the rule of law and the applicability of trial by jury, which had seen its origins during Henry II’s rule in the previous century when the first judges emerged too.

Ultimately, then, Magna Carta was a bulwark against tyranny. For thirteenth century barons it was also a tool for the advance of oligarchy, a means of protecting their role as the advisors to the king – their positions as such having been established informally during the reign of William the Conqueror. Magna Carta certainly did not envisage genuine democratic rights as they are understood today.

It is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance (Photo by Peter Macdiarmid/Getty Images) (Photo by Peter Macdiarmid/Getty Images))

Indeed, the continuing acceptance of a formalised and symbiotic relationship between the monarch and his (important) subjects was not without its hiccups – to put things mildly. And the development of regular parliaments in the mid- to late-thirteenth century (and especially their extension to include non-noble representatives) was largely the consequence of discord, rather than harmonious reform.

The security of parliament’s role – separated into two chambers from the mid-14th century – and the independence of the judiciary were largely dependent on the strength or weakness of successive monarchs. Henry VIII’s “great matter” and the subsequent break from Rome have been seen by many historians as the point at which parliamentary power took on a new character, although Tudor monarchs were canny enough to recognise that empowering parliament was a means to legitimising their own authority. Fundamentally, though, the monarch retained a firm grip on the power of the executive veto.

The four original surviving copies of the Magna Carta are brought together for the first time (PA)

But if the Tudor period, rumbustious as it was, witnessed a new understanding of the need for balance in the relationship between executive, legislature and judiciary, so it was the dramatic failure of the Stuart kings to accept the limitations of their power which ultimately led to the more formal separation of the three arms of state.

The Star Chamber was originally conceived as a kind of supervisory body to oversee the operation of England’s lower courts and consider appeals, as well as to ensure enforcement of the law against those powerful enough to avoid the clutches of local judicial officials. Yet under James I, the Chamber effectively became the king’s private enforcement agency, meting out judgments on moral as well as legal matters. The court was used to suppress dissent and to bypass the necessity of calling parliaments.

Salisbury Cathedral is home to one of the four surviving copies of the Magna Carta (Getty)

The dismissal by James I of Edward Coke, the Chief Justice, for having suggested that the king was subject to the law, rather than the other way round, brought matters to a head. Incensed, Coke dedicated himself to writing The Institutes of the Lawes of England, which emphasised the role of Magna Carta as the basis for the common law and, notably, as having enshrined the independence of the judiciary from monarchical control. Coke subsequently drafted The Petition of Right, an updated Magna Carta, which parliament compelled the new king, Charles I, unhappily to accept. Charles responded by governing without parliament for 11 years and ramping up his persecution of those who opposed him. The English Civil War, which followed, ended with Charles’ execution, convicted by a jury of 120 officials of the highest rank available.

Coke’s assertion of Magna Carta’s formative place in English constitutional history, especially in confirming the independence of the judiciary, has been upheld with remarkable consistency throughout the last 350 years. The Glorious Revolution of 1688 and the subsequent passage of the Bill of Rights, followed a decade later by the Act of Settlement, finally – and for good – ended any pretensions that a monarch might have to absolute rule and cemented the separate functions of crown, parliament and courts.

In recent decades, constitutional changes have further reinforced the separation of state powers (even if the continued existence of the executive within the legislature raises theoretical difficulties). The last Labour government, for instance, ended the legal function of the House of Lords, transferring power to the Supreme Court as the UK’s highest legal authority, and provided for more independence in the appointment of judges.

Yet it is the great irony of Britain’s unwritten constitution that having arguably reached a point of greatest clarity, so it is up for renewed debate. The role of the European Convention on Human Rights, as legislated for by the Human Rights Act here; the existence of the Strasbourg court; clashes between ministers and judicial officials over their respective roles; and ongoing questions over House of Lords reform – not to mention the state of the Union between Scotland and England: all have become major talking points. Magna Carta, which was intended to resolve a specific set of contemporary problems in 1215, has come for many to represent a simpler, more English, representation of rights.

In the final analysis, however, it is the incremental reforms which have taken place in the last 800 years that are the hallmark of British government and governance. To ignore that is to disregard the struggles of those who have endeavoured to ensure respect for the rule of law and to maintain the delicate balance between the powers that rule our lives.

Key tests: The rule of law

A | From Magna Carta (1215) (paragraphs 39, 40 and 45) 39: …No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40: To no one will we sell, to no one will we refuse or delay, right or justice…

45: We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.

B | From the Assize of Clarendon (1166) (paragraph 1)

1: …The said King Henry ordained… that inquiry be made through the several counties and through the several hundreds by twelve more lawful men of the hundred and by four more lawful men of each vill, upon oath that they will tell the truth, whether in their hundred or in their vill there is any man cited or charged as himself being a robber or murderer or thief…

C | From ‘Commentaries on the Laws of England’ (1765) by Sir William Blackstone, Book 1, Chapter 1

[This land is]… a land… in which political or civil liberty is the very end and scope of the constitution. This liberty, rightly understood, consists in the power of doing whatever the laws permit; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest…

D | From the Petition of Right (1628) (paragraph 10) …that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained...

E | From the Bill of Rights (1689)

[The] Lords Spiritual and Temporal and Commons… being now assembled in a full and free representative of this nation… do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare: that the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal; that the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal; …that levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; that it is the right of the subjects to petition the king…; that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; …that election of members of Parliament ought to be free; that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; …and that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

F | From the Constitutional Reform Act (2005) (part 2, section 3)

(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

(2) Subsection (1) does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose.

(3) A person is not subject to the duty imposed by subsection (1) if he is subject to the duty imposed by section 1(1) of the Justice (Northern Ireland) Act 2002 (c. 26).

(4) The following particular duties are imposed for the purpose of upholding that independence.

(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

(6) The Lord Chancellor must have regard to:

(a) the need to defend that independence;

(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;

(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.

(7) In this section “the judiciary” includes the judiciary of any of the following:

(a) the Supreme Court;

(b) any other court established under the law of any part of the United Kingdom;

(c) any international court.

(8) In subsection (7) “international court” means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of:

(a) an agreement to which the United Kingdom or Her Majesty’s Government in the United Kingdom is a party, or (b) a resolution of the Security Council or General Assembly of the United Nations.

G | From the Constitutional Reform Act (2005) (part 3, section 23)

(1) There is to be a Supreme Court of the United Kingdom.

(2) The Court consists of 12 judges appointed by Her Majesty by letters patent.

(3) Her Majesty may from time to time by Order in Council amend subsection (2) so as to increase or further increase the number of judges of the Court.

(4) No recommendation may be made to Her Majesty in Council to make an Order under subsection (3) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.

(5) Her Majesty may by letters patent appoint one of the judges to be President and one to be Deputy President of the Court.

(6) The judges other than the President and Deputy President are to be styled “Justices of the Supreme Court”.

(7) The Court is to be taken to be duly constituted despite any vacancy among the judges of the Court or in the office of President or Deputy President.