Publisher: Hart Publishing, Oxford 2014, 222 pp
Author: Anthony Arlidge QC and Lord Judge
Reviewed by: Adrian Duffy
June 2015 marks the 800th anniversary of the signing of the Magna Carta at Runnymede. It is at once perhaps the least understood and most improperly cited instrument in our legal system. It is not too pejorative to say that it is a favourite of self-represented litigants, [1] but they are not alone in not having a full understanding of what Magna Carta stands for and, importantly, what it does not stand for.
This book is timely, bringing as it does a clearer understanding of not only how the Magna Carta came into being, but importantly, what it represents today.
The text is written from the perspective of experienced practitioners. Anthony Arlidge QC has been a silk for over 30 years. He is an original co-author of Arlidge and Eady on Contempt of Court. He remains leading co-author of Arlidge and Parry on Fraud, a leading practitioner text in the field.
Igor, Baron Judge, was Lord Chief Justice of England and Wales and, like Arlidge QC, a Treasurer of the Middle Temple, which has such a close connection with Magna Carta.
The learned authors trace the origins of the great compact, the first of four versions that were issued between 1215 and 1225. They discuss the personalities and the dynamics between the King and the various players that created the setting for the making of the charter, including the roles of Archbishop Langton and the Master of the Order of the Temple. [2] The history of the confrontations and negotiations that ensued are detailed.
As befits lawyers, the authors examine the content of the document itself, noting that it was not in fact titled “Magna Carta” nor named at all. Nor was it signed, but sealed as was the method of authentication then employed for a royal charter. It was not written in English, but in Latin (a translation is included in the Appendices).
The authors observe that the principles of Magna Carta, along with other common law principles, were received in Australia and, they say, continue in force. In contrast to the position in the United Kingdom, they comment:
Indeed since the enactment of the Human Rights Act 1998 in this country, a number of our Australian colleagues suggest that it is Australia where the stream of the common law is found at its purest, free from exposure to extraneous influences such as the European Convention on Human Rights. We have not detected that the liberties of the citizens of Australia have suffered any consequent diminution.
By section 5 of the Imperial Acts Application Act 1984 (Qld), Ch 29 of the 1225 version [3] of the charter, confirmed in the Imperial Act 25 Edward I, [4] was preserved, that it to say it was enacted that it was to “continue to have the same force and effect (if any) [5] as it had in Queensland immediately prior to the commencement” of the 1984 Act.
Ch 29 of the 1225 version spoke of the right of free men not to be imprisoned or disseised save by judgment of their peers or by the law of the land. It has come to be referred to as the genesis of the right to trial by jury, even though there was no such system established at that time. It finds resonance in the Fifth Amendment of the Constitution of the United States of America. Ch 29 also speaks of justice not being denied or delayed, often argued as the basis for a right to a speedy trial.
This is a fascinating, well-written and, if I may say so, easily digestible work. One suspects that the 800th anniversary will serve to heighten interest in Magna Carta and perhaps inspire a fresh wave of reliance upon it, if for no other purpose than as a symbol of what are argued to be key tenets of our legal system. This book may go some way to assisting with a better understanding and present a sound factual and historical basis for that understanding to go along with the popular perceptions of what the Great Charter represents.
Lord Sumption in a recent speech said: [6]
It is impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently.
His Lordship would not, of course, have been referring to the work under review. Whether it says anything new, it is certainly not mad.
Adrian Duffy
Footnotes
[1] See Clark, D., The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law [2000] MelbULawRw 34
[2] There are also, in Appendix B, biographical details of the “rebel barons”
[3] Chapter (or clause) 29 in the 1225 revised version was effectively an amalgamation of clauses 39 and 40 of the 1215 original.
[4] It does not appear along with Queensland legislation at www.legislation.qld.gov.au . It is contained on the website of the ACT Parliamentary Counsel at www.legislation.act.gov.au
[5] Emphasis added. There is some doubt about whether it does form part of the law of Queensland, as to which see R v Walker [1989] 2 Qd R 79, 85 per McPherson J (note that the 1984 Act does not appear to have been referred to); although see Australian Securities & Investment Commission v Errol John White (unreported, Federal Court of Australia Full Court, 10 November 1998)
[6] Address by Lord Sumption of the Supreme Court of the United Kingdom to the Friends of the British Library on 9 March 2015 on the topic Magna Carta then and now. His Lordships’s speech may be accessed at https://www.supremecourt.uk/docs/speech-150309.pdf
