Magna Carta and Written Constitutions – Bagehot debate

Lord Tyler took part in the 4th annual Bagehot debate on 6th June, celebrating the 800th anniversary of the Magna Carta, at Huish Episcopi Adademy in Langport, Somerset. He spoke for the motion “It’s time for a new Magna Carta”, with assistance from Academy pupil Douglas Stephenson.  Their opponents, speaking against the motion, were Lord Norton of Louth, a Conservative peer and professor of politics at the University of Hull, and Academy pupil Sarah Allen. 

A transcript of his opening speech in the debate is below:

I am particularly grateful to the Society for encouraging me (persuading me? Forcing me?) to revisit all sorts of long-forgotten material about the Great Charter …. Not least Walter Bagehot’s own exceedingly wise analysis of its significance.

I haven’t time now to read a long extract from his book “English Constitution” of 1867 but this will give you an idea of his careful assessment:

“In truth, such great ‘charters’ were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense.  They were the ‘deeds of arrangement’ of mediaeval society affirmed and re-affirmed from time to time …….  Sir James Mackintosh says that Magna Carta ‘converted the right of taxation into the shield of liberty’, but it did nothing of the sort.  The liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a substratum or a cause.”

In other words Bagehot saw clearly that Magna Carta was part of an evolution of what he then described as the “ever-altering constitution”.

It was not, and cannot be, the permanent, perfect, finite statement of our rights and duties as citizens.

Now that the 800th birthday has given us all a great opportunity to re-examine the actual text I have been struck by several features.

For example, I note that some of the Barons seem scarcely capable of signing their names.  Maybe several of them were illiterate?   Certainly, the Church seems to have  had a very big role.  Not only was the Archbishop of Canterbury a major player, but each signatory was witnessed by a Bishop or Abbot – who were presumably literate and knew what they were signing up too.

There are moments in the Lords, when the Division Bells sound and today’s Barons solemnly obey the instructions of the Party Whips, and I wonder how many of them know what they are supporting.

Certainly, if our predecessors in 1215 were to be informed that – 800 years later – every full citizen in England was claiming to be equal under the law of England, as a result of their signature, I bet the vast majority of them would demand a repeal.

So that is my first argument for a new Charter:  after 8 centuries (and various other constitutional developments in every century since) the original is entitled to a little evolution.

That is NOT to suggest that all its principles are out-dated or unnecessary.

I take just one very topical example.  Magna Carta is often quoted as the bedrock on which our right in England to be tried by our peers (our fellow citizens, in this context) is based.

However, 9 out of 10 cases never get anywhere near a Judge and Jury today.  In subsequent centuries the introduction and expansion of the lay Magistracy has provided this independent justice, and rightly so.   They are true representatives of the community.

But that role has been diluted and distorted – by successive Governments – by shifting more and more cases for decision by solitary and professional lawyers, Stipendary  Magistrates and District Judges.  They quote the need for cost cutting, despite the fact that lay magistrates are unpaid.

This is a clear case for re-asserting the right of independent and community based justice, in a modern Magna Carta.   That’s my second reason.

But why should we need anything written down ?   Are we not proud that we are one of the very few countries in the world to have no Written Constitution ?

Pull the other one !

What we actually suffer from is a part-Written Constitution, lots of ad-hocery, with UK statutes which cover everything from the great constitutional relationship of those  who set MPs’ pay, at one extreme, to the rights of individual citizens to challenge the actions of the state at the other.

We in Parliament are just in the process of writing down some more constitution, with the development of further devolution for all parts of the United Kingdom.

On Monday we will debate in the Lords the Second Reading of the Cities and Local Government Devolution Bill.   On the front page the Minister has to affirm that the Bill is compatible with the European Convention on Human Rights and the UK’s Human Rights Act 1998.   This is admitted to be a constitutional Bill.

It will be yet another addition to our half-hearted, now-you-see-it-now-you-don’t Written Constitution.

In their Lordships’ House I wish I had a Guinea for every occasion when some Peer has complained at the lack of a coherent, cohesive and comprehensive collection of these constitutional changes …… usually led by the acknowledged expert, Professor Lord Norton of Louth !

So that’s my third reason for supporting this Motion:  we have an unholy mess at the moment, a real dog’s dinner of potentially contradictory written and unwritten provisions, and it’s time to codify it for the present day.

I have one more reason, which I believe to be conclusive.

There is an urgent need to make our rights as citizens clearer, more apparent and more accessible.   We should all know what they actually are.

It won’t have escaped your notice that some politicians seem determined to opt out of the Convention on Human Rights, despite the fact that it was a product of the Churchill-led insistence that we should all be protected from the excesses of inhumanity of the first half of the 20th Century, and that it was largely drafted by British Conservative lawyers.

Significantly, it is being robustly defended by Dominic Grieve, the previous Conservative Attorney General, and Kenneth Clarke, the former Lord Chancellor.

Equally significantly, the demolition job is being urged on by ignorant people in the media and elsewhere, who appear to be under the absurd misapprehension that the Convention is a product of the EU.  It is not:  it pre-dates the Common Market, as an agreement in the Council of Europe, led by our own country.

So the construction of a new Magna Carta – written to reinforce the basic human rights we currently enjoy under the Convention and the Human Rights Act– is both topical and urgent.  Without it, there will barely have been an 18th birthday, let alone an 800th, for proper UK human rights, enforced – as the 1998 Act specifically provides – in British courts.

That’s my fourth reason.

By contrast, the opposition argument against this motion rests on just two legs.

On the one hand, they assert that the original Great Charter was so comprehensive, so timeless, so perfect that there is no need to modernise it.

On the other, they dismiss it as so flimsy, so inadequate and so limited to its time and place in history as to be worthless, and therefore no model for the 21st Century.

You will observe that these two legs are mutually contradictory, pulling in exactly opposite directions.  To argue them together would be to attempt the oratorical splits.

Meanwhile, our support for the Motion before you is securely planted on those four foundations, which are both complementary and mutually reinforcing.

As we all know, a chair with four legs is a great deal more stable than one with just two.

The notion that our constitution’s magnificence is predicated on its flexibility is demolished weekly by the proponents of that very argument, when they complain that all constitutional change is piecemeal.

So a new Magna Carta is necessary.  A modern treaty, between layers of government – defining and limiting their rights in relation to each other; and more importantly still, securing the rights of the people, and limiting the reach of the state.

Logically, rationally – and in the best traditions of Walter Bagehot – I hope that you will avoid the falsehood of ‘flexibility’ offered by the opponents and vote constructively for this Motion.


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