Written evidence submitted by Rory Broomfield, Director,

The Freedom Association (AMC 142)

About the author and The Freedom Association:

Rory Broomfield is the Director of TFA where he is also Director of the Better Off Out campaign.

The Freedom Association (TFA) is a non-partisan, centre-right, libertarian pressure group. TFA believes in the freedom of the individual in all aspects of life to as great an extent as possible. As such, we seek to challenge all erosion of civil liberties and campaign in support of individual liberty and freedom of expression.

Founded in 1975 by Viscount De L’Isle VC, KG, PC, GCMG, GCVO, Ross McWhirter, Norris McWhirter CBE and Major John Gouriet, The Freedom Association is a membership based organisation that runs a number of campaigns including the Magna Carta in the 21st century campaign that seeks to raise levels of education and awareness of the importance of the Great Charter and its most enduring phrase: freedom under law.

Executive Summary:

In this submission The Freedom Association argues that:

●        As we have politicians at home and abroad looking to change the legal traditions within the UK there is a case for a renewed Magna Carta.

●        The document should restate the values and principles exhibited in the original Great Charter and ensure that those within the UK are protected from the erosion of these principles by the courts.

●        It finds that Governmental policies - both past and present - have undermined the value of these principles within the UK legal system and argues for their return, coupled with a mechanism for amendment that ensures the threshold to be such that the renewed document does not fall prey to any “elected dictatorship”.

●        That freedom under law for the individual should be the focus of a Written Constitution in order to enhance trust both between the state and the people and between the people themselves.

What are the values of Magna Carta

(1)   The values laid out in Magna Carta were those of the individual: establishing the concept of equality under the law, ensuring property rights and freedom of religion. It was a document that ensured legal freedoms including the guarantee of trial by jury (clauses 39 and 40), the protection of property from arbitrary seizure (such as in clause 9) and helped establish a free church (clause 1). It was also instrumental in establishing legal freedoms for women (clauses 7 and 8). These clauses, and others contained within the document, inscribed freedom under law for the individual into legal tradition.[1]

(2) It is worth noting that the Great Charter applied to what was within the jurisdiction of the King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou - i.e. that which fell under the jurisdiction of King John. It did not apply elsewhere. At the same time, the laws and customs of other lands were not explicitly incorporated within this Charter. Therefore, it can be seen as setting the principles and legal traditions of what is now UK sovereign territory, while laws which applied elsewhere were inadmissible. However, in later years it is true that the principles of the Great Charter informed many legal practices in other English speaking countries, notably in the now United States of America. It therefore established an international common law tradition.    

Why are these values important and how have they been undermined?

(3) As mentioned above, the values helped to protect and empower the individual both at home and abroad. It allowed human society to evolve in a way that could aid and facilitate - through values of property rights and the right to a fair trial - the development of capitalism and a functioning tax system. In terms of global commerce the values allowed for recognised systems to be set up and, in terms of legal principles, protected individuals against state intrusions at here and abroad.

(4) However, over time many values of Magna Carta have been undermined or eroded. Some due to natural obsolescence, some through an active desire to replace with other systems that draw advantage to parties other than the individual. The nature of the English legal system - that which is able to evolve over time - helped in this process; it is fair to say we have a very different body of law today compared with what we had in 1215.

(5) The legal system in the UK today is not just informed by politicians and judges at home but also by those in institutional based abroad. The remarks made by Lord Neuberger, President of the UK Supreme Court, that European courts overruling decisions of the UK parliament, as is substantially the effect of what the Strasbourg court and the Luxembourg court [the European court of justice] can do, is little short of offensive to our notions of constitutional propriety,” illustrates that this has not been to the UK’s benefit. Indeed, these courts, alongside other bodies, have not just encroached on the “constitutional propriety” of the UK but some judicial arrangements have undermined the basic traditions, values and freedoms associated with English law.[2]

(6) However, the principles of the original Magna Carta have also been put in jeopardy by successive UK governments, of all political colours, that use their executive power to push through legislation. Over the years, this has undermined the integrity of the principles laid out in the Magna Carta. A recent example of this is the Government’s decision to opt into the European Arrest Warrant which exposes those resident in the UK to trial without jury in other EU nations.

A proposed solution:

(7) In its guidance for this review, the Committee has set out three options: a Constitutional Code, Constitutional Consolidation Act and Written Constitution. Given the problems highlighted above, there is a case for a codified constitution that will allow for lawmakers and citizens to understand and have confidence in the legal system. Indeed, given the complexity of our current legal system and the lack of trust associated with those that make the law (both within the UK, the EU and other courts such as the ECHR),[3] it is understandable that trust in the current in the current system is low.

(8). A codified constitution setting out the basic law and how the people relate to the state has its pitfalls, however. This is most notably over what is contained within the document and how it is amended. If the text is not drawn up correctly in the first place - and with public approval - then it can cause all manner of further issues in the future.

(9). Amending the text of any given document can also cause issues with regards to executive power over the process. The UK does not have the checks and balances currently in place in countries like the United States of America and can therefore the text of any such document could be more vulnerable “executive overreach”.  

(10) Complexity and lack of trust in politicians has also increased as the number of different bodies that inform UK law have also increased.  Instances of abuse and ill feeling during the recent referendum in Scotland illustrate that it is necessary to renew the connection not just between the people and the state but the people themselves. This was illustrated in my article written for the ConservativeHome website before the Scottish Referendum.[4]

(11) This complexity was highlighted by Martin Howe QC with reference to the constitutional system of another EU member state, Spain, and its dealings with the European Arrest Warrant. At The Freedom Association’s Freedom Zone in Birmingham, Mr Howe noted that we now have two European Courts involved with European human rights issues and that their different attitude of these courts when it comes to issues that might “come to rights that impact on or might interfere with the on rolling juggernaut of European Integration”[5]. He cited the case of Melloni where an individual in Spain claimed his constitutional right, under the Spanish Constitution, not to be surrendered after a trial had been conducted in another EU member state in absentia. This was dismissed by the European courts and Spain had to modify its constitutional law[6].

(12) To overcome such concerns any Written Constitution could and should reinforce only the basic legal principles that ensure the people feel empowered with regards to the state and connected to one another. It should look to the Magna Carta for inspiration in drawing up these principles and be mindful of what enhances individual freedom, rather than the capabilities of the state. It should also take into account Mr Howe’s views, given at the Freedom Zone, that if there were a written Bill of Rights that there should be some serious consideration given to introducing a clause that will ensure that it “prevails over anything in European Union law” in order to avoid the document being superseded by EU / ECHR law.[7]  

(12)  On such a document being drawn up it should have extensive consultation with civic society groups and a referendum before implementation. Further, to ensure that any amendment is made with the consent of the people, any amendment should only be carried in the event of a referendum.

(13) The reason why a referendum on the change to the document is needed is because a change to the basic law of this country would mark a fundamental change to its constitutional arrangements. Manifesto pledges are not enough. Indeed, there is a perception that a number of manifesto pledges have been made in the past (over such things as a referendum on EU Treaties and membership) that have not been honoured and little confidence that they will be honoured in the future[8]. Further, a referendum would lead to increased amounts of debate over the subject material, raise awareness of the principles themselves, help to renew the connection between individuals within the UK and confidence in the system.

1 January 2015