Does the UK need a new Magna Carta?

This year marks the 800 year anniversary of the Magna Carta. It’s still an important symbol of our freedoms, but there’s increasing talk that a new document is needed, one which will codify our constitution. Two lawyers debate the question: does the UK need a new Magna Carta?

YESsays Linklaters associate Emma Pountney 

A new Magna Carta – a codification of the UK’s constitution, limiting the powers of the executive and entrenching the basic constituent elements of the rule of law – would curtail a dangerous dwindling of respect for the rule of law in the country. The rule of law is essential in underpinning democratic governance and in promoting the stability and certainty required for economic evolution.

The UK’s constitution is unwritten. In recent decades, there have been a number of quasi-constitutional documented initiatives ranging from statutes such as the Human Rights Act 1998 to behavioural guidance such as the Code of Conduct for Members of Parliament. But there is no single document setting down the rules and institutions for governing the nation.

There are myriad new and competing pressures facing the world that, in turn, place pressure on governments to find new solutions. The economic collapse sent shockwaves through the financial world and the threat of terrorism looms ever larger. The unwritten constitution, it is argued, is evolutionary and flexible in nature, enabling problems to be resolved as they arise and tailored solutions to be developed.

Certainly, the rule of law does not necessarily require a written constitution. The original Magna Carta was far more important as a statement of principle – establishing that the executive is subject to the law and that justice must be dispensed according to the law – than as a specific breakdown of powers and responsibilities.

However, whatever constitutional arrangements are in place must be adequate to promote and protect the rule of law, and the flexible arrangements in place in the UK do not meet this challenge. Executive powers in recent years have encroached beyond acceptable parameters. Staggering discretion has been given to regulators, with offences being created that are hopelessly vague and extraordinarily wide. The rule of law is also besieged by increasing uncertainty: regulators are not bound by retroactivity, certainty, or any other key features of the rule of law.

A new Magna Carta would not be a cure-all to the assault on the rule of law, it would be a skeletal framework fleshed out by executive and judicial practice. However, in re-establishing the foundational importance of the rule of law a new Magna Carta would serve as a reminder that the rule of law is not an optional add-on, but at the heart of what it means to be British.

NO, says DWF trainee Emma Khoo 

Emma Khoo, DWF
Emma Khoo, DWF

The fact the Magna Carta can be celebrated and is still in force nearly 800 years since it was sealed is testimony to the greatness not only of the charter, but also of its legacy – democracy.

Symbolically, the Magna Carta represents the touchstone of personal liberty and has left the legacy of the principle of the rule of law throughout the world. Some even argue that it goes as far as creating an environment conducive to the growth of business. Its quasi-mythic symbolism is not unjustified when we consider its significance in English and Welsh law and the UK constitution.

That so much of the Magna Carta is now obsolete does not diminish its relevance to today’s society. In fact, it demonstrates the flexibility of an unwritten constitution. Such flexibility enables practical problems to be resolved as they arise, without requiring a special procedure to amend the constitution. By contrast a new Magna Carta, codifying our constitution, would politicise the judiciary, requiring courts to decide questions that would sometimes be better left to politicians. A flexible, unwritten constitution is evolutionary, not born out of revolution – a point of pride for one of two sovereign states (of which the UK is the oldest) in the world with unwritten constitutions (New Zealand is the other one).  

While the Magna Carta, and in particular Article 29, may not have been determinative in modern case law, that is not to say it does not have significance as the origin of principles of the common law: trial by one’s peers, habeus corpus and the rule of law itself. Furthermore, Article 29 has been cited in case law as recent as in 1994’s case of Re B (child abduction: wardship: power to detain) and subsequently in the 1996 case of Delaney v Delaney, such is its significance in cases concerning the restriction of personal liberty.

The Magna Carta enshrines Britishness: the enduring legacy of the ‘right thing’ being done by those in power for the masses, which continues to be celebrated and have relevance in – and be shaped by – modern society. To implement a new Magna Carta would be symbolic of Britain’s embarrassment about its heritage as a bastion of an evolving, modern society with an evolving, modern legal system that defers to the lessons of the past for today’s society and our posterity.

Magna Carta