Celebrating the Magna Carta with a Global Law Summit

Despite the criticism and despite the protests, the Government’s Global Law Summit rumbles on, marking the 800th anniversary of the Magna Carta with a three day legal feast. The meeting in central London opened on 23rd February and closes on the 25th. To walk up and get a ticket now will cost delegates between £629 (for delegates from less economically developed overseas countries) and £1,749 plus VAT for a series of sessions on patents, sports law and terrorism, amongst other topics. As the front page of the website makes clear, the conference has a very clear aim: Business is Great (and the world should come to the UK and do business). It is a point that Ministers have made before, with the Attorney General declaring in October 2014 that:

The concept of the rule of law is an asset to this country both at home and abroad. It brings us jobs and investment. It is also a great export both in the number of our lawyers working abroad, acting in the best traditions of the rule of law, and in the number of countries looking to us as an example.

The Barons who forced King John to sign the Magna Carta in 1215 would be very proud. Their key concern was that the King was imposing excessive taxation, and preventing them from getting on with 13th Century trickle-down economics. The Magna Carta they pressured the King into signing was less a statement of the inalienable rights of the people, and more of a peace treaty between warring ruling elites. As the book 1066 and all that satirically puts it, the charter provided “That the Barons should not be tried except by a special jury of other Barons, who would understand.”

As a source of law, the Great Charter has little practical contemporary relevance, but as a source of principle, it has a long and rich history. Most importantly it is credited with the central idea of the Rule of Law – that even the Monarch must be subject to the law. The current Summit and the Attorney General’s speech both appear to downplay this side of the principle, and focus on the importance of law in bringing commercial certainty and clarity. There is little emphasis on other understandings of the Rule of Law, and on the Magna Carta as central to the idea that the government must obey the law and must protect individual rights.

This is important because it has been suggested that the long history of protecting civil liberties in the UK, starting with the Magna Carta, means we know how to do rights (David Cameron said it in October 2014). The argument goes that this means we do not need a Human Rights Act – that ancient principles in the common law, perhaps together with a new British Bill of Rights, will protect our rights without the need for the European Convention on Human Rights. This focus on holding the government to account is certainly not the focus of the Attorney General and the #GLS2015 who prefer to steer the UK’s international involvement in discussions about the rule of law towards an emphasis on creating a safe, certain environment for business.

Unfortunately, and inconveniently for the Government, the other side of the rule of law keeps interfering with these plans. At the same time as the global festival of lawyers takes place, another court judgment has come out with the Lord Chancellor on the losing side. In Letts v. Lord Chancellor [2015] EWHC 402 (Admin), the court declared that the guidance published by the Government which is used to decide whether families should get legal aid at inquests into deaths of detained mental health patients is materially in error. As the court held at paragraph 118:

Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.

The case was brought on the basis of the right to life in Article 2 of the European Convention on Human Rights. Because of this judgment, and the rights contained in the ECHR and the Human Rights Act, families who need legal help to get at the truth when a loved one has died have a better chance of getting justice. Creating certainty so that people can do business is important, but so too are fundamental rights like this. The meanings of the Magna Carta are contested and its applications to modern life are disputed, but any celebration of the rule of law should not forget the need to protect the vulnerable and hold the State to account. The Magna Carta won’t do this in modern Britain – that’s why we need the Human Rights Act.