Magna Carta Day

802 years ago, King John was forced to do a deal with rebel barons on the meadows of Runnymede. They had become exasperated with his abuse of executive power - and demanded a halt.

I|n doing so they forced him to concede a principle which is central to the modern British Constitution - that the Executive must operate within the bounds of its legal authority.

It was a start - and although John sought to renege on it (and provoked a civil war which ended with his death)"., the principle remains. It has been developed further.But today we can rightly celebrate what happened on those Surrey meadows over eight centuries ago.

https://www.bl.uk/magna-carta

The Rule of Law

Another key concept in UK Constitutional Law!

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land - therefore there should be no 'arbitrary' justice - behaviour should be prohibited in advance - not after the event - people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law - the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined. - Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question?

Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765) R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise. Do reflect on how the concept of the Rule of Law relates to other constitutional principles. There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

Magna Carta - 800 years!

Today we will be celebrating the 800th anniversary of events that occurred in a meadow by the River Thames. Historians tell us that they actually took place over a few days - and the exact sequence is unclear - but today's date is the one that has gone down in history.

There are some excellent websites with great resources - I list a few (with hyperlinks)

* British Library
* Previous Washminster Posts: 2007, 2009, 2010, 2011, Feb 2015,
* US - National Archives and Records Administration
* Lincoln Cathedral
* Salisbury Cathedral
* BBC - Taking Liberties (note - some content may only be available in the UK)
* CBC News


"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled . nor will we proceed with force against him . except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice."

The Rule of Law

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land
- therefore there should be no 'arbitrary' justice
- behaviour should be prohibited in advance - not after the event
- people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law
- the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined.
- Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question? Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

Allen and Thompson deal with the concept in Chapter three of their Cases and Materials on Constitutional and Administrative Law - 10th Edition



There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765)R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise.

Do reflect on how the concept of the Rule of Law relates to other constitutional principles.

There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

An ideal Law Exam Question?

'Discuss the view that "Parliamentary legislation is excessively complex and its confusions undermine the rule of the law"'

This isn't actually an exam question that has been set in a British university - but it would an excellent question - either for "English Legal System" (allowing an explanation of issues relating to 'statutory interpretation') or "Constitutional Law" (enabling a student to demonstrate their understanding of the concept of the Rule of Law)

If I were a student, I'd read the following article - from which the quote is taken - and reflect on what points I could make - even going as far as preparing an essay plan.

http://www.guardian.co.uk/law/2013/apr/16/parliamentary-legislation-too-complex-report

On the 'Rule of Law' (and other UK constitutional principles), it's difficult to beat Lord Bingham's short, readable and thought provoking book of the same name.

Dicey and the Rule of Law

I've argued before that the great value for law and politics students of A V Dicey is that he has encapsulated central doctrines of the UK Constitution in lists of three pithy points. That makes it easier to see how different aspects of an idea are connected - useful when first learning a topic - but also great as a foundation for revision.

When writing essays, be it for term papers or TMAs, the list given by Dicey can provide a useful structure when describing; explaining; applying and discussing a doctrine.

On "Rule of Law" as a key doctrine in the British Constitution - Dicey pointed (as ever) to Three Key principles -

(1) "no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law" - a respect for the Rule of Law means that there will be no arbitrary punishments. Only when a breach of a PRE-EXISTING offence occurs - and the person is tried in a properly constituted and impartial Court - can a citizen be punished.

(2) There is "equality before the law." As Denning put it "Be you ever so high, the law is above you" - No one is above the law, whatever their background or status. Similarly - as Magna Carta promised in 1215 - "To no one will we sell, to no one will we refuse or delay, right or justice"

(3) "The constitution is the result of the ordinary law of the land." Parliament (a partly elected body) will be able to pass whatever laws it wishes. The people are free to elect representatives who are free to legislate without the constraints that a perhaps centuries-old Constitution - written by fallible men in very different circumstances - would impose.

Yesterday in Parliament

I spent many hours yesterday watching proceedings in the House of Lords from the public gallery. Before we were admitted the Lord Speaker's Ceremony took place where she was escorted from her rooms at the southern end of the Palace through Princes' Chamber; along the "Not Content" Lobby (Votes are taken in what is normally a corridor) into the Peers Lobby and finally into the Chamber where she took her seat. Visitors were then escorted from the Peers Lobby upstairs - but we were not admitted until prayers had been completed. In the Westminster Parliament, only Members and certain officials are allowed in while prayers are in progress. Finally we were allowed into the gallery - and Question Time began.

In the Commons questions are directed at Ministers from a specific Government Department. In the Lords they are to "the Government". Thirty minutes are set aside for oral questions. Four Members get to put a question which has been submitted in advance. The Minister's initial reply must be in less than 75 words. Then supplementaries begin - first from the person who had put down the initial question - then from others. After seven or eight minutes (or less if there are no further Peers wishing to ask a supplementary) the next question is taken.

There was a small amount to business to be dealt with before the big debate of the day began. Yesterday it was the Second Reading of the Legal Aid; Sentencing and Punishment of Offenders Bill. My post of last Wednesday has the background to this controversial bill.

It is well worth watching or reading the debate - particularly if you are a law student - but also if you are a citizen. There are many important issues involved - and at its heart, the importance of the ability to enforce rights. Magna Carta was quoted (and in the chamber statues of the Barons who forced King John to sign that groundbreaking document, look down upon proceedings). Many references were made to Lord Bingham's excellent book - "The Rule of Law".

The committee stage of the Bill will start soon - and I'll be reporting from it for Washminster.

Core Principles of the UK Constitution

The MindMap below highlights the key (indeed CORE) principles which underlie the UK Constitution. If you ever need to describe the UK Constitution - these are ideas which you need to explain.

Most textbooks will set out a definition; some authorities; some examples illustrating the application of the principle. You could use this MindMap as a starting point for your own larger MindMap (great for revision purposes) - make sure that you add a brief definition (better to put it in your own words than try to memorise a quote from someone else) plus a handful of key cases and examples.

Dicey was a genius at highlighting the key ideas in such doctrines. He is summarised in many textbooks - and his book "Introduction to the study of The Law of the Constitution" is worth a read - even if it's a skim read to get you "fit" prior to an exam.



A more recent book - which can be read in a few hours - and is both readable AND full of useful definitions and modern examples is the late Lord Bingham's "The Rule of Law"

Magna Carta Day

Yesterday Eleanor Laing was given leave to introduce a Bill which would make 15th June 2015 a national holiday. It would celebrate the 800th anniversary of the signing of the Magna Carta.

The procedure used was that of a "ten minute rule bill". This is covered by Standing Order 23. On Tuesdays and Wednesdays a member is given 10 minutes (the SO actually speaks of "the Speaker, after permitting, if he thinks fit, a brief explanatory statement...) to give reasons why the House should grant leave to bring in the bill. Actually leave is not needed to bring in a bill - SO 57 says "A member may, after notice, present a bill without previously obtaining leave from the House to bring in the same". This happens very early in the day's business - and can pass almost unnoticed - and that is the point about the 10 minute rule bill procedure. It is rarely used for serious legislating - instead it gives the member an opportunity for "prime time" coverage of the issue he or she wishes to raise. It occurs straight after Questions - and of course on a Wednesday, straight after PMQs (Prime Minister' Question Time). Many 10 minute rule bills get national publicity earlier in the day.

Ms Laing's purpose was to draw attention to the campaign for a holiday to celebrate the signing of the Magna Carta. I have to say that I can not be neutral on this issue. I strongly believe that in the UK we should give more attention to this important event and document in British history. I was the co-founder of a Facebook group as far back as 2007 - "Magna Carta Day!" - do please join!

This blog has frequently dealt with the Magna Carta and its significance
May 2011
June 2010
June 2007
Threats to Liberty
The Rule of Law

The request for leave and the subsequent First Reading can be watched at 01:01:30 onwards (you will need to move the slider to that point (although there's quite a bit to see beforehand - including a message from the Queen; PMQs; A point of order; and Introduction of a bill under the Art 57 procedure)

The Rule of Law (republished)

Many books deserve a fulsome recommendation. A very few fall into that rare category of "books every citizen should read". One small book out this year more than exceeds the criteria for inclusion in this limited list [the criteria should be (1) the writer has something VERY important to say AND (2) it is written in plain, readable language]

Lord Bingham of Cornhill ['Tom Bingham' is the name on the book] has been Master of the Rolls (head of England and Wales' civil justice system); Lord Chief Justice (head of the judiciary of England and Wales) and the Senior Law Lord (in the House of Lords Judicial Committee - the highest court in the UK before it became the Supreme Court). When he writes about the law, he knows what he is writing about! (Times' Profile)

"The Rule of Law" [London: Allen Lane, 2010 ISBN 978-1-846-14090-7] is a short, but incredibly powerful and useful book. It explains - in a very readable way - a central concept in English Law. He sets out a history of the idea, then explains what it means. It is no obscure academic principle, but the foundation upon which liberty rests. Every citizen should read this book - because it explains the meaning and importance of the idea - and sets out how easily it can be threatened.

The book is also a superb introduction to English Law. In succinct terms Lord Bingham explains (in a way unrivalled by any textbook I've seen) -

• sources of English Law (chap 3)
• principles of the English legal system (Chap 9)
• Judicial Review (Chap 6)
• Human Rights Law - including key provisions of the European Convention on Human Rights (Chap 7)
• principles of International Law (Chap 10)
• Sovereignty of Parliament (Chap 12)

If you are studying (or about to study) Law - [particularly those subjects traditionally known as 'English Legal System' and 'Constitutional & Administrative Law' (or the Open University's W100, W200, W201, Y166) - this is a book you will find very useful - both for understanding key concepts and for exam revision.
But this is not just a book for law students. Students of politics and history will also find it useful - as indeed (as I've already said a few times) ANY CITIZEN.

The Rule of Law

Many books deserve a fulsome recommendation. A very few fall into that rare category of "books every citizen should read". One small book out this year more than exceeds the criteria for inclusion in this limited list [the criteria should be (1) the writer has something VERY important to say AND (2) it is written in plain, readable language]

Lord Bingham of Cornhill ['Tom Bingham' is the name on the book] has been Master of the Rolls (head of England and Wales' civil justice system); Lord Chief Justice (head of the judiciary of England and Wales) and the Senior Law Lord (in the House of Lords Judicial Committee - the highest court in the UK before it became the Supreme Court). When he writes about the law, he knows what he is writing about! (Times' Profile)

"The Rule of Law" [London: Allen Lane, 2010 ISBN 978-1-846-14090-7] is a short, but incredibly powerful and useful book. It explains - in a very readable way - a central concept in English Law. He sets out a history of the idea, then explains what it means. It is no obscure academic principle, but the foundation upon which liberty rests. Every citizen should read this book - because it explains the meaning and importance of the idea - and sets out how easily it can be threatened.

The book is also a superb introduction to English Law. In succinct terms Lord Bingham explains (in a way unrivalled by any textbook I've seen) -

• sources of English Law (chap 3)
• principles of the English legal system (Chap 9)
• Judicial Review (Chap 6)
• Human Rights Law - including key provisions of the European Convention on Human Rights (Chap 7)
• principles of International Law (Chap 10)
• Sovereignty of Parliament (Chap 12)

If you are studying (or about to study) Law - [particularly those subjects traditionally known as 'English Legal System' and 'Constitutional & Administrative Law' (or the Open University's W100, W200, W201, Y166) - this is a book you will find very useful - both for understanding key concepts and for exam revision.
But this is not just a book for law students. Students of politics and history will also find it useful - as indeed (as I've already said a few times) ANY CITIZEN.

Constitutional Meat

The case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs raises a host of important constitutional issues. There is much in the case meriting reflection upon. The two key issues are –

Firstly, how far should the demands of National Security be allowed to compromise fundamental constitutional principles – such as the Rule of Law; accountability to Parliament and individuals’ rights? This is a very important – perhaps the most important – constitutional issue. By chance I’ve been listening to the audiobook of “Packing the Court” and have reached the point where the conflict between President Lincoln and the Supreme Court over this issue is discussed. To complement that I glanced again through former Chief Justice Rehnquist’s book “All the Laws but One”. (I also came across a very useful article by Lord Bingham - Personal Freedom and the Dilemma of Democracies') I recommend all of these if you are reflecting on the issue.

The deleted paragraph in the draft judgement in the Binyam Mohammed case contains the following criticisms of MI5
• It failed to respect human rights
• It deliberately misled Parliament
• It had a ‘culture of suppression’

National Security – and its oversight by Parliament and Congress is an interesting topic itself. Many of the works of Christopher Andrew deal with the subject. By coincidence yesterday also saw the passing of former Representative Charlie Wilson – and both the film and book about him “Charlie Wilson’s War” are useful primers on Congress and National Security.

The second issue concerns the rule established in the famous “Ship Money” case of the Seventeenth Century involving John Hampden [a case that Washminster will be discussing shortly] that there should be no secret communication between lawyers and the Court in legal proceedings (unless the Court has given specific directions).

The Guardian reports today that the Government’s QC, Jonathan Sumption, sent his comments on the draft judgement to Lord Neuberger, copying in only one of the parties to the case (Binyam Mohamed) - and not the representatives of the Guardian, Washington Post, New York Times, Liberty, Justice, Index on Censorship, who were also parties. Lord Neuberger assumed (as is standard practice) that all parties had seen Sumption's comments and had not felt the need to sumbit comments on Sumption's - and took this into account when he amended the draft.

Hansard contains the statement (and supplementary questions) made in the House of Commons on the case by Foreign Secretary David Miliband.

Your comments on these matters would be appreciated. You can make a comment directly - or send to me here.

The Rule of Law

The "Rule of Law" is a principle central to the British and American systems. The Magna Carta is often seen as the statute which established the principle in our joint tradition because it contains the principle that the King, like all his subjects, is subject to the rule of law

A.V.Dicey summarised the rule of law (in the UK) under three heads.

Primarily...No man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law.

Secondarily...No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land.

Finally...There is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person. (this last point of course is not shared with the American tradition - and since the Human Rights Act 1998, is now rejected here)

{The memorial at Runnymede, pictured above, was built by the American Bar Association - which intends to meet there in 2015 - the 800th anniversary of King John's signing of the Magna Carta at that place}