David Eyles: Why the Magna Carta still matters today (Part II of II)
David Eyles is a Dorset livestock farmer.
The previous article was concerned principally with the finer detail of the Magna Carta; with the way in which it was a response to correct the individual abuses of feudal law by King John. But there are two clauses whose significance was nothing short of revolutionary. Clause 60 stated unequivocally that everything in this document applied equally to the king as well as to his subjects. Given the prevailing system of absolute power of the Angevin kings, this clause is astonishing enough as it grants an equality that was inconceivable before. But it is clause 61 which goes even further. It ensured that politics in England would never be the same again and furthermore that the character of law and politics in England were sundered from that of continental Europe. Clause 61 is long and in eight paragraphs. It gives the remedies to the barons if John should fail to keep his side of the bargain. Twenty five barons were elected to bring any offence of John or his agents to his attention and seek redress. In translation, this is what it says: “If we…..make no redress within forty days…..the twenty five barons ….may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.” This remarkable clause gives licence for rebellion against the king if those twenty five are agreed of the need to do so. Schama, so eloquently, puts it thus: “So, if Magna Carta was not the birth certificate of freedom it was the death certificate of despotism. It spelled out for the first time, and unequivocally, something with which the Angevins themselves, as the highest justices in the realm, could not conceivably quarrel: that the law was not simply the will or the whim of the king but was an independent power in its own right, and that kings could be brought to book for violating it……..All this, in turn, presupposed something hitherto unimaginable: that there was some sort of English ‘state’ of which the king was part (albeit the supreme part) but not the whole.”
The delicate balance between the power of the king and his nobles, or the executive and Parliament, remained a subject for discussion, with varying degrees of violence, for the next 800 years. The principle of legal opposition to the executive has now been enshrined in parliamentary process by the gradual evolution of the party system. This has obviated the need for revolution and replaced it with elections if the electorate disagrees with the executive.
There are many enjoyable parallels between the character of John and that of Gordon Brown. John squandered his inheritance, and that of others, with bad management. He was foul tempered, devious, given to suspicion about the motives of those around him and suffered bouts of inaction when action was desperately needed. On other occasions he seemed almost manic and worked incredibly hard and seemed to be genuinely concerned for the poor. Like Gordon Brown, he was passionately fond of reading and delving into fine detail - which is how he derived so much income from his perversion of statute to gather stealth taxes. Gordon Brown reneged upon the commitment for a referendum on the Lisbon Treaty as John reneged upon the Magna Carta and put several towns to the sword. Within three months of the signing of the Magna Carta, John launched retribution against his rebellious barons and Pope Innocent III annulled the agreement as the work of traitors. 800 years later, we watch in interest whilst the EU deals with the recalcitrant Irish. In 1215, England was overtaxed, short of cash and its citizens were having their daily lives interfered with by the king and overzealous officials. Little, it seems, has changed.
In my dictionary, the rule of law is defined as: “the restriction of the arbitrary exercise of power by subordinating it to well defined and established laws.” The Magna Carta is concerned with upholding the principles of feudal law. It is this re-statement of principles which is described within the document as “liberties”. In the medieval sense, the word liberty is used as a limitation or constraint upon the king. But if the king is constrained then his subjects acquire liberty, in the modern sense, as a consequence. John’s systematic abuse of law brought himself into disrepute and the country to near bankruptcy, invasion and ignominy. The Magna Carta therefore attempted to re-establish the rule of law.
Nearly 800 years later, we have had 3000 new criminal offences put onto the statute book within the last ten years. Apparently endless databases of our private details are made and then lost by the state. CCTV of all of our movements are recorded without our permission. The police are never on the streets and so do not prevent crime; whilst they are perceived by many as more likely to arrest or penalise the law-abiding rather than the criminal. Our ability to work is restricted and constrained by ever more detailed and intrusive regulation. And we are taxed as never before in peace time. This situation, surely, is an “arbitrary exercise of power.”
Liberty is defined as: “the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behaviour or political views.” By contrast right is defined as: “a moral or legal entitlement to have or obtain something or to act in a certain way.” From these two definitions it can be seen that a right is specific and even limited. Liberty is general and all encompassing. Thus, a new regulation may take away a large chunk of our liberty, whilst handing back a specific right, such as the right to appeal against a bureaucratic decision arising from that regulation. On aggregate however, we have suffered a net loss of liberty. Or, looked at another way: we may have plenty of rights, but very little in the way of liberty.
As the state advances inexorably further and further into our lives, incessantly nibbling away at our liberty, it shows less and less competence in dealing with the complexity of the real world outside the bureaucrat’s office. We are witnessing a slow but certain constipation of the primary functions of government because there is now so much regulation; the complexity of which has caused the system to coil up upon itself and to disappear up its own fundament. Inevitably, daylight is no longer visible. The rest of us, the governed, are entering an inane, surreal world where the more offences the state finds us committing, then the more powers it needs to check up on us and penalise us. As we react to this intrusion and modify our behaviour into avoidance, the state finds yet more regulation to ensure compliance; and so the ratchet tightens again. As individuals become more furtive and covert in hiding normal and previously legitimate activity from the state, society as a whole becomes less productive, unhappy, unfulfilled, less vital and less creative. Instead it becomes angrier, more introverted, divided, violent, anarchic and spiritually and morally corrupt. In the end, we all become criminals. Criminality – real criminality – goes from a relatively rare event to commonplace until finally it becomes almost universal. A further feature of the overweening state is cynicism and apathy amongst the electorate – there is little point in voting because everything is bearing down upon us and no change is possible whatever the outcome at the ballot box.
Our loss of liberty cuts across many issues that are now being addressed by the Conservative Party. So far, David Davis is the only eminent Tory to have nailed this as being in the background of so many peoples’ anguish and to then relate it to the events of 800 years ago. David Cameron has mentioned, briefly, the small state but has not so far enlarged upon that idea. But in general, the use of the word liberty in this country is almost non-existent. It is almost as if we dare not speak its name. In the USA, liberty is a central part of the American national psyche and turnout at elections is greater as a result. In the newly democratised states of Eastern Europe, election turnout was in the order of 80% - 90% and the same in newly liberated Iraq, despite murders and intimidation at the polling stations. The concept of liberty in those countries is fresh and new and people want to cherish it. It is no co-incidence in my mind that electoral turnout in the “old” EU countries is as dismal as it is now in this country. And yet if we were to restore the concept of liberty as a core of policy in social welfare, criminal law, economics and our relationship with the EU, so many things would become clearer. If the Conservatives really wish to distinguish themselves from Labour and re-invigorate the electorate, then this principle would provide an instant and recognisable means of achieving that. The difficulty is in providing practical means of implementation, without jeopardising the need for opposing principles of, say, security. So, if the state is to be rolled back, how are we to re-establish the rule of law with its concomitant principle of liberty?