On 15 June 1215 – or thereabouts – at Runnymede meadow, lying between Windsor and Staines, King John came to an agreement with a group of subjects who had been rebelling against him. It is now known as Magna Carta. Through it John promised to observe certain standards of conduct insisted upon by his aggrieved magnates. Magna Carta has since taken on legendary status in England, the UK and globally as a symbol of democracy and the rule of law. In particular, chapters 39 and 40 of the 1215 text (there were 63 chapters in total, though this numbering was a later addition) are regarded as sources of the principles that punishment should take place in accordance with the law, and that there should be access to justice for those accused. It is an irony, therefore, that the 800th anniversary of this text should take place when the UK is experiencing problematic constitutional flux.
We face pronounced disagreements in many areas. They include membership of the European Union (EU), participation in the European Convention on Human Rights (ECHR) and its incorporation into UK law through the Human Rights Act 1998, the role of judicial review in constraining the actions of the executive, arrangements for the governance of the different nations, regions and localities of the UK, and whether some parts of the union should become independent. Interest has risen in the possibility of introducing a written constitution for the UK, and the House of Commons Political and Constitutional Reform Committee has carried out an inquiry in this area.
In this policy paper I consider how Magna Carta might provide a framework for contemporary constitutional challenges. In particular, the paper confronts popularly held conceptions about English and UK constitutional history, drawing on Magna Carta and other documents that both preceded and followed it, their origins and their subsequent fate.
Innumerable accounts have promoted the idea that tacit, unwritten arrangements have an exceptional prominence in UK constitutional arrangements. According to this school of thought, while other countries in Europe and elsewhere have needed to create documents expressing how governors should operate and their relationship with those they govern, England and later the UK has tended to prefer unspoken shared assumptions and conventions. Magna Carta suggests otherwise. This document is one of several written statements of fundamental principle in UK and English history. By 1215 and the agreement of Magna Carta (there was no signing, since John could read but not write), the production of such documents was already an ancient practice. Indeed, it seems that the written English language came into being precisely to encapsulate social and political rules, probably at the turn of the sixth/seventh centuries, when King Ethelbert of Kent oversaw the production of a law code. This practice continued under subsequent Anglo-Saxon rulers, including King Alfred late in the ninth century, and was maintained by the Normans and their successors, though they used Latin rather than the vernacular.
Since Magna Carta, many other texts have set out crucial constitutional principles in writing, such as the New Ordinances (1311), the Petition of Right (1628), the Bill of Rights (1689), the Treaty and acts of Union between Scotland and England (1706-1707), the Act of Union between Ireland and Great Britain (1800), and the Parliament Act 1911 (amended by the Parliament Act 1949). In recent times, the volume of written constitutional texts has multiplied. One part of this expansion has come from acts of parliament such as the European Communities Act 1972, the devolution legislation from the late 1990s, the Constitutional Reform Act 2005 and the Fixed-term Parliaments Act 2011.
Conventions – rules lacking the full force of law, that bind a system together and allow it to operate – have also found their way into official publications, such as the Ministerial Code (first publicly issued in 1992 as Questions of Procedure for Ministers) and the Cabinet Manual (2011). Expressing our constitution (or at least parts of it) in writing is an entirely natural act for the UK as it is for other societies, and we should not imagine that there are insurmountable cultural barriers to the success of such drafting endeavours.
Another popular assumption surrounding UK and English constitutional history is that it has – again to an unusual extent in international comparison – been a story of peaceful, gradual and perhaps irresistible development. The so-called Whig theory of history depicted a steady progression through which the unique English values of individual freedom, inherent from the outset, progressively unfolded. Magna Carta often figured in such narratives. Yet in truth its appearance was not a placid event. It was the product of a rebellion against King John by his subjects. They objected to the methods of the Angevin dynasty in general, including a tendency to manipulate justice, expand royal land and place stringent financial demands upon their subjects, and the particularly provocative version of these practices that John pursued. A threat of French invasion lurked at the same time, further forcing John’s hand to concede to the demands of those he ruled that he bind himself to behaving differently in future.
Once John had agreed a series of concessions and (temporarily) restored peace with his vassals, the subsequent history of Magna Carta was as tumultuous as the circumstances in which it came into being. With encouragement from John, Pope Innocent III, drawing on a special authority John had recently granted him as overlord of the kingdom, issued a papal bull on 24 August 1215 revoking Magna Carta. Conflict resumed between king and rebels. Magna Carta came back into force (in altered form) only after the death of John the following year. With hostile French forces present in England, advisers to his young son and successor, Henry III, deemed a reissue of the text a potentially valuable move in securing domestic support for the new king. Subsequent revisions and reissues of Magna Carta often occurred in similarly difficult circumstances. The embedding of Magna Carta and the values we associate with it can only seem an inevitable process retrospectively.
The circumstances surrounding the introduction and subsequent impact of other constitutional texts follow a comparable pattern of violence and discontinuity. Invasion has been as important a part of the history of the British Isles as avoidance of it. Only relatively recently did being an island become a source of security; in earlier times the surrounding sea made hostile incursion relatively more likely, given the difficulty of land travel. The law code of King Alfred occurred during a period of Viking attack and occupation, and was probably part of a wider royal programme for establishing a cohesive English identity to help resist this onslaught.
Conquerors could themselves make direct constitutional contributions. Early in the 1020s, Cnut, a Viking who secured the throne of England, seeking to reassure his English subjects, issued a text including guarantees of good kingly practice that is seen as an important precursor to Magna Carta. Internal rebellion has been of perennial importance, sometimes operating in tandem with foreign intervention. In 1628, the Petition of Right sought to assert certain individual liberties and the idea of government by consent. Stuart monarchs were reluctant in practice to abide by these principles, which it took a civil war and two revolutions to impose more firmly. The second of the two uprisings, the so-called ‘Glorious Revolution’ of 1688, was not wholly ‘glorious’, and alongside domestic unrest involved a Dutch invasion under the leadership of William of Orange, leading on to the Bill of Rights of 1689.
In the following century, the UK began to come into being. But coercion and threatened or actual violence played a part in the formation and maintenance of this state from the very beginning. Fear of Louis XIV and Napoleon were important motives for the unions, respectively, of Scotland and England early in the eighteenth century, and Great Britain and Ireland nearly a hundred years later. Not all within the new state were content with it. Jacobites in Scotland, for instance, rose up against the union on more than one occasion. Another challenge to the tranquil development thesis came in the 1920s with the departure of most of Ireland, following a prolonged conflict that later resumed in relation to the remaining six counties comprising Northern Ireland.
As well as arising in violent circumstances, many of the texts assessed here sought to bring about change. They tended to claim that they were merely seeking to assert previously existing rules and understandings. But this packaging could be misleading, whether or not the authors intended it to be. Magna Carta, for instance, made a series of appeals to tradition and custom, but sought to introduce new arrangements. They included (in chapters 12 and 14) an extension in the range of taxes for which consent from subjects was required, and stipulations (in chapters 50 and 51) that John must remove named allies and military personnel from public offices and from England, because the rebels disliked them as creatures of the king. In the words of the historian J. C. Holt:
Sometimes Magna Carta stated law. Sometimes it stated what its supporters hoped would become law. Sometimes it stated what they pretended was law. As a party manifesto it made a party case with scant regard for fact or existing practice.
But whatever the reality, open innovation was not possible in 1215. The concept of governance founded on abstract reason rather than tradition did not begin to appear in England until the seventeenth century. It is partly because of the need to adhere to this convention that the dubious narrative of smooth constitutional progress was able to take hold. If there is a chain of development, it has involved statements of principle, radical for their time though hiding behind and deploying deference to the past, then being utilised by a future generation for transformative purposes that were different again. Ideas now popularly associated with Magna Carta – in particular universal rights and democracy – were not, and could not, have been in the minds of those who secured a set of concessions from John at Runnymede in 1215, though they certainly wanted to achieve change in their own time.
Concepts can alter, and not always slowly and unconsciously, but sometimes suddenly and through deliberate action. Paths of development, moreover, are not preordained. Contingencies can be important. For instance, were it not for the death of John in 1216, it is reasonable to doubt whether Magna Carta ever would have revived, and whether anyone would be interested in its anniversary in 2015. Moreover, ideas can take diverse courses. Magna Carta has influenced many countries around the world, particularly but not exclusively those that were at some point part of the British Empire. Yet attachment to this text has manifested itself in different ways, with diverse expressions. Some are republics, some are monarchies. Some are expressly federal states, others are more unitary in nature. Some have full bills of rights in the modern sense, others do not. Some have separated the religious and public spheres, while the UK retains an established church. And as we will see, most have written constitutions, while a small number do not.
The constitutions of England and then the UK did not have to develop precisely as they did. Various Anglo-Saxon law codes emphasise principles such as welfare provision and autonomous local government to an extent that did not subsequently persist. The Instrument of Government, introduced under Oliver Cromwell in 1653, set out a system in which no monarchy or House of Lords existed, and in which the head of state, the Lord Protector, was separate from Parliament, with the two institutions sharing legislative powers. The Act of Settlement of 1701, in its initial form, would have prevented the development of collective Cabinet government that became central to the UK system, and was intended to prohibit Members of the House of Commons from being ministers. However, these particular provisions were soon removed from the Act and forgotten. In the period leading up to the union between England and Scotland, finally brought about in 1707, the alternative model to full incorporation of the two nations was a looser arrangement labelled ‘federal union’, with a single monarch and foreign policy, but the retention of the two pre-existing parliaments, each with a broad responsibility for its own internal affairs. Perhaps today, particularly following the Scottish Independence Referendum of 2014, we are moving ever closer to this proposal.
Finally, it is inevitable that the way in which a document is understood or presented today may change tomorrow, and again the day after. A contemporary complaint about the ECHR, for instance, is that the European Court of Human Rights has come to interpret it in ways that the original framers did not intend. Yet the same is true of Magna Carta. And the sometimes willful distortion of this ancient instrument – that itself encouraged, whether deliberately or accidentally on the part of the authors, misunderstanding of the past, and was deliberately drafted in such a way as to allow for diverse interpretation – has been beneficial to the international development of democracy, human rights and the rule of law. Malleability can be valuable, and it is possible for written as well as unwritten constitutional arrangements to be flexible.
Another common depiction of UK constitutional development characterises it as separate from the continental mainland, distanced from the material events and ideas of the rest of Europe. Magna Carta belies this account. As we have seen, the text owed its existence and persistence partly to the spectre or occurrence of invasion from elsewhere in Europe, like so many developments in English and UK constitutional history. Furthermore, Magna Carta was the expression of a wider continental tendency at the time of its introduction for rulers to issue documents granting concessions to their subjects, often following military failure. One of the most famous examples was the ‘Golden Bull’ of Andrew II of Hungary, granted in 1222, which asserted the existence of limitations on royal power and specified certain privileges of subjects.
John was more than a king of England alone, presiding over a (contracting) European empire, and he was obliged to agree to Magna Carta in circumstances prompted by military failure in France. It was written in Latin, the language that is part of the shared heritage of Europe. It is more apt, therefore, to describe Magna Carta as a European text than – as it often is – a British one. Great Britain and the UK did not exist as a state until 1707. Magna Carta was English and European. The two definitions are entirely compatible – in fact they are mutually dependent, since England can only be understood in its continental environment, and Europe is defined partly by the many distinctive components it comprises. Particular states, such as the UK, can form and possibly dissolve, but the European setting remains.
A ‘supranational’ institution spreading across Western Europe and beyond, the Roman Church, played a complex part in the Magna Carta story. The English branch of this body, and in particular the Archbishop of Canterbury, Stephen Langton, acted as brokers in negotiations between the rebels and John in 1215. In the process clerics managed to insert into Magna Carta an opening chapter protecting the privileges of their institution. Slightly more than two months after it was agreed, Innocent III declared Magna Carta to be void. But later popes became guarantors of Magna Carta, even applying blanket excommunications to those who transgressed it.
Influence has worked in both directions. For instance, in 1688, William of Orange brought with him from the United Provinces ideas about a constrained executive that are present in the Bill of Rights; while it is possible to detect the influence of Magna Carta even in the French Declaration of the Rights of Man of 1789, in particular Article 7 of this pronouncement. The European Convention on Human Rights incorporates ideas both from Magna Carta and the Bill of Rights. For the pioneers of European integration, UK and English constitutional thought and practice were a central inspiration. The union of 1706-1707 was an example of how different nations could combine to form a single market and state. After prolonged debate and negotiation, in 1973 the UK joined the continental integration project for which it had helped provide a model. Yet many hold that it is difficult or perhaps impossible, because of its distinctness, including its exceptional emphasis on the supremacy of Parliament, for the UK fully to incorporate into this European entity. This outlook has been an important part of the ‘Eurosceptic’ school, with adherents across the political spectrum. A further contention is that, for similar reasons, the role of the European Court of Human Rights in making judgments binding upon the UK, as entailed by participation in the ECHR, is inappropriate. Exponents of this outlook today include the Conservative Party.
Consideration of Magna Carta and other constitutional texts demonstrates that the UK and England before it were always firmly European, playing a part in its patterns of development. The external imposition of norms associated with the ECHR has precedent in the role of the Pope as upholder of Magna Carta. Some of the most controversial features of the EU – including for free movement of people and the imposition of universal trade regulations – have precursors in Magna Carta (and other documents from English and UK history). Chapter 35 calls for the standardisation of a range of weights and measures in England; while chapters 41 and 42 provide for people to be able to come to and leave England generally without hindrance, and for foreign traders not to be subject to discriminatory measures and tariffs. Whatever decisions the UK takes about the EU and the ECHR in coming years, inescapably it will remain European.
We now return to the idea, already dispelled, that the UK does not have a tradition of including its fundamental arrangements in documents. This flawed conception has an extension: that a written constitution – a single text, or series of interlinked texts, expressly labelled a ‘constitution’, claiming to draw authority from the people, and enjoying special legal status – is alien to the UK. It is true that, at present, the UK lacks a written constitution so defined. But Magna Carta possessed some of the qualities now associated with such a document. It did not – and could not – include later ideas such as representative democracy or universal rights. Yet it dealt with the role of various institutions, such as the Church, central and local government, and the courts. Chapters 12 and 14 made stipulations about securing relatively wide consent to the raising of taxes. The text sought to impose limitations on executive authority and prevent arbitrary punishment, and provide for some individual privileges (but not comprehensive rights as we understand them). Magna Carta also tried to ensure a lasting existence for itself, through claiming it would last forever – prefiguring the later efforts of written constitutions to prevent their amendment, except by special procedures. Magna Carta further sought to create a powerful enforcement provision, removed from later versions of the text because it was too radical. A committee of 25 barons, provided for through chapter 61, could force compliance on a king they judged to be violating the terms of the document. It resembles the practices applying in many countries with written constitutions, in which the judiciary is tasked with upholding the fundamental rules.
The process by which Magna Carta came into being is also instructive. A relatively broad grouping, including barony, Londoners, clergy and others further down the social scale, combined to force upon John a different way of operating. The breadth of this coalition gave the text – though issued by John in his own name – a legitimacy that a more exclusive exercise would not have done. It was also helpful to Magna Carta that its various provisions served the requirements of numerous groups that therefore had a material interest in its maintenance once it returned after the initial papal annulment of August 1215. This inclusive basis to some extent anticipated the later concept of popular sovereignty, reflecting a sense that fundamental rules should rest on an exceptional degree of consent. In this sense the process leading to Magna Carta resembled a constitutional convention, a gathering convened to create a new constitutional text. The way in which the drafting of Magna Carta seems to have taken place – involving prolonged discussions between rebels and the royal camp, taking expert advice and considering evidence – is a further similarity with the kind of practices associated with a constitutional convention.
Numerous other texts from English and UK history have displayed some of these qualities. For instance, many of them have dealt with multiple features of the political system, such as the New Ordinances of 1311 and the Treaty and Acts of Union. Often they made a point of their inclusive (for their time) basis – for instance, the use of the so-called ‘Witan’ of notables for the approval of texts issued under Anglo-Saxon rulers. The Bill of Rights was the product of an entity initially known as a Convention that subsequently decided it was a Parliament or ‘Convention Parliament’. This body was a source of the term ‘convention’ as applied internationally to a gathering convened to produce a fundamental constitution text. The Instrument of Government provides further cause to question conceptions of the UK as possessing a constitution that is by tradition ‘unwritten’. In force throughout the British Isles, it is widely regarded as a fully-fledged written constitution – perhaps the first in world history, certainly the first in English/UK history – as is its 1657 successor, the Humble Petition and Advice. A flaw in the Instrument, however, was that only a small group of senior figures in the army was involved in drafting it.
The record of writing down constitutional arrangements is more than a footnote in history, since it achieved immense international impact. The constitutional convulsions of the seventeenth century expanded beyond England as far as North America. Colonists took with them ideas that would eventually manifest themselves in the most famous and influential written constitution in the world, that of the United States, drafted at Philadelphia in 1787. In so doing they were in part giving expression to values they associated with Magna Carta and other English texts including the Bill of Rights.
Meanwhile in England and then the UK, a different principle took hold. Rather than a written constitution, the ultimate source of legal authority was an institution: Parliament. According to a doctrine often known as ‘parliamentary sovereignty’, the Westminster legislature could do or undo anything subject only to self-restraint and practical realities, and not the terms of a constitutional text. Though it was once the central guarantor of Magna Carta, Parliament began to turn on it, and starting in 1863 began repealing most of Magna Carta through a series of consolidation acts. Today, the only provisions initially found in the 1215 text that remain in effect are those relating to the freedom of the church, those protecting municipal rights, and the provisions that were at first contained in chapters 39 and 40, involving due process and access to the law.
Now, with the advent of membership what became the EU, the introduction of the Human Rights Act and the establishment of devolution, the overweening authority of the UK Parliament is not as clear as it once was. Any attempt to move decisively towards a written constitution would have at least some historic precedent. The urge to set out fundamental arrangements in an entrenched text, arising from an inclusive process of production, has existed in England and the UK as it has elsewhere. Indeed, we have set an example that others have followed in this regard. Perhaps one day these ideas will be readapted in their place of origin. History, if properly deployed, can expand the debate around this subject, rather than preventing it from taking place.
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