Magna Carta's Tainted Legacy: Historic Justifications for a British Bill of Rights and the Case Against the Human Rights Act

Abstract

Close scrutiny rarely flatters the foundation myths of political orders, but this has not stopped such myths being co-opted for political ends. The near-mythical place of Magna Carta within the UK’s constitutional history allowed the Conservative Government to hitch its proposals for repeal of the Human Rights Act to celebrations of its 800-year anniversary. Celebrating a Charter which supposedly embodies the genesis of legal limitations on previously absolute power would seemingly sit uneasily with the Conservative Party’s commitment to parliamentary sovereignty in the face of the constraints imposed by the European Convention on Human Rights. Moreover, even if the attribution of trial by jury, freedom of expression and habeas corpus to Magna Carta’s overburdened Clauses 39 and 40 is anachronistic, a celebration of the Charter’s place in the popular conscience as a bulwark protecting “ancient rights” and liberties is difficult to reconcile with the Government’s commitment to scrapping the Human Rights Act. The terms of the 2015 celebrations were, however, closely managed by Conservative ministers to emphasise the indigenous character of Magna Carta within the UK’s “ancient constitution” as a counterpoint to European elements within the UK’s governance arrangements. As such, Magna Carta has proven as useful to the Conservatives as a means of legitimating their policy of repealing the Human Rights Act as it is as a rallying point for opposing abuses of power.