Ignoring the Magna Carta
a dangerous path

The Magna Carta is a reminder of the importance to civilisation of the rule of law.

A 19th-century recreation of King John signing the Magna Carta.

A 19th-century recreation of King John signing the Magna Carta.

By David Harper

July 12 2015If a week is a long time in politics, 800 years is something else. Nevertheless, points of conflict sometimes endure across the ages and the oceans. In England in June 1215, as in Australia in June 2015, taxpayers were unhappy. The perception of government, at least in some quarters, was that it was too powerful, too remote and too partisan. There was also talk of significant amendments to the existing constitutional arrangements. Above all, there was concern that those in power were acting as if they were above the law.

The possible constitutional change under most immediate scrutiny was the formal recognition of a certain category of citizens. In England in 1215, it was the lesser nobility – the barons – who sought that recognition. In Australia in 2015, the question was whether the constitution should acknowledge the Indigenous communities as not only the first Australians, but also as the custodians of the land for thousands of years, and as being (with all Australians) entitled to protection against racial discrimination.

Another constitutional change, hovering – in 1215 and again in 2015 – somewhere between the theoretical and the real, was a republican form of governance.

In June 1215, much attention was focused on the head of government. John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, count of Anjou, had in 1199 acquired his Angevin Empire following the deaths of his elder brothers Richard and Geoffrey and the murder, possibly by John himself, of Geoffrey’s son Arthur. It was a legacy which John quickly dissipated.

For Philip II of France, John’s European territories constituted an insult, something Philip was determined to erase. And Phillip was even better than John at being bad. In little more than five years, Phillip had compressed John’s territorial sovereignty to the extent that only England and Aquitaine remained.

If the immediate recovery of his European domains was beyond reasonable contemplation, John could at least direct his considerable if flawed abilities towards the restoration of his pride. By becoming the first of the English kings since the Norman Conquest to break the mould of absentee rulers, he could also nourish his appetite for the immediate exercise of power. The imposition of direct, authoritarian, arbitrary and omnipotent authority over his Anglo-Celtic subjects became his abiding concern. The barons, whose management of their fiefdoms was, in general, highly profitable, constituted a particular target. Jews and the Church were another.

A confrontation between John, the barons and the Pope (Innocent III) became inevitable. John confiscated more and more baronial and Church property and conducted punitive raids into Wales and Scotland, flouting judicial process as he went. The barons turned to France and Philip for help. For his part, Innocent retaliated with every means at his disposal. In 1207 he orchestrated the appointment of a longstanding opponent of John’s (Cardinal Stephen Langton) as Archbishop of Canterbury. In 1208, he placed all England under a papal interdict. And in 1209 he excommunicated John himself. But nothing stemmed the stream of money entering John’s coffers. By 1212 the king had accumulated wealth beyond the dreams of his predecessors. With financial backing of that kind, John did what has come naturally to rulers down the ages. He went to war.

The result was disaster. On 27 July 1214, at Bouvines in Flanders, Philip routed the allied English and Flemish armies. John returned to England not only impoverished but also having agreed to allow his leading baronial opponents to follow him home.

After that, all roads led, as the attestation clause of the Magna Carta itself records, to “the meadow which is called Runnymede between Windsor and Staines on the fifteenth day of June in the seventeenth year of our reign”. Stripped of any room seriously to negotiate, John accepted all 63 of the Charter’s clauses or “chapters” placed before him. Of these, chapter 61 conferred almost total power upon a panel of 25 barons. According to the historian David Starkey, this would in time “have… turned England into a Venetian republic, with the king as its puppet doge.” John’s death on 18 October 1216 is one of the reasons that that did not come to pass.

The Charter has since reappeared in many iterations. Chapter 61, however, disappeared with its first reissue, under the infant Henry III, on 12 November 1216. Other chapters were preserved through not only the second but also the third iteration (11 February 1225) and those which followed. A famous example is the provision that “No free man shall be arrested or imprisoned… except by the lawful judgment of his peers or by the law of the land.”

It is the reference to the law of the land which, perhaps above all else, accounts for Magna Carta’s lasting significance. It placed the law above the monarch, and hence gave birth to what was to become one of the greatest of civilising principles – that of the rule of law. All power tends to corrupt, and absolute power corrupts absolutely. Only the rule of law stands in the way.

Politicians, and especially governments, need constant reminders of this. Under the rule of law, conviction and punishment is reserved to the courts. The removal by ministerial fiat of Australian citizenship from someone who has not been duly convicted of a criminal offence against Australian law therefore amounts to a breach of the rule of law. A government which – whether under the cloak of “operational matters” or by some other means – conceals what it does, allows illegality, corruption and cruelty to flourish free of the consequences which the rule of law prescribes. A government which places asylum seekers under the control of undemocratic or corrupt or secretive regimes, regimes which themselves traduce the rule of law, is guilty by association of the same sin. In every case, the legacy of Magna Carta is also traduced.

David Harper AM is a former judge of the Court of Appeal, Supreme Court of Victoria.