We have been regaled with the Magna Carta on its 799th birthday. And much of this has been to remind us of the document's seminal importance to England and to the English idea of liberty and the rule of law. An idea that became British, grew to be American and still sits at the heart of how that rather ugly concept "the anglosphere" sees itself.
So it is right that we understand what the Magna Carta means in practical terms and David Allen Green is on hand to remind us:
...as law, it is of little or no practical use. Nobody in modern times seems to have ever relied on it to determine the outcome of a case. It is not “live” in the way the Bill of Rights is in the United States or similar constitutional guarantees in other countries. It is ornamentation, not legislation.
Now I am not sufficient of a lawyer to explore whether or not this argument is sound. So I will take the good lawyer at his words and agree that the Magna Carta has no effective force in law. And for completeness, I will agree also that David Allen Green's conclusion - that this veneration of Magna Carta represents a problem:
What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for Parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights.
However, our politicians and judges would prefer us to believe in a medieval myth which allows them to do to us what exactly they would do to us anyway. It suits them grandly that the charter is merely a “symbol”.
Readers of the original piece from Mr Green will have noticed that I've left off the last sentence of his article - the part where he says that politicians and judges are celebrating the wool being firmly pulled over our eyes. I don't believe this is the case with those most ardent in their veneration of the Magna Carta, I believe these men - mostly politicians rather than lawyers - are absolutely sincere and that the document is extremely important and very significant.
One of the things about being a conservative is that we recognise a thread through history linking the institutions and events of times past to the truth of today's world. And, it's true that some of this is 'myth' but that doesn't change it's importance to our identity. The Magna Carta - the charter itself and its associated mystery - is such a thing, a symbol of our identity. Indeed, without that charter would we have had the Glorious Revolution? Would there have been the English Bill of Rights, the US Constitution and subsequent statements placing liberty above the power of leviathan?
It is this that we celebrate not the specific content of the Magna Carta, the idea of liberty and individual sovereignty. And it's also true, as David Allen Green reminds us, that a national myth is not enough on its own to protect our liberty. We've had the secret courts, the encroaching surveillance, the denial of free speech and much else besides. All things from which Magna Carta cannot protect us, all abuses of liberty loaded upon us by subsequent governments.
If in celebrating Magna Carta we must remind ourselves that it was a statement against arbitrary government and in support of a law that belonged to us all not to that government. The point of Magna Carta isn't to sneer, to get all lawyerly, but to point to document and to the government saying: "we want our liberties back." And when politicians say how important it is to them - and I note that here it is overwhelmingly conservative politicians doing so - we should ask 'how important'? Enough to guarantee again the rights those barons demanded of their king? Enough to reaffirm the Bill of Rights signed into law by squires and merchants in parliament?
If we take the Magna Carta and make its central idea of a law independent of government important again, point to it as the source of ideas like free thought, free speech and free assembly, and teach these myths to our children we will allow those children to claim those rights again, to challenge leviathan and to make those judges and politicians David Allen Green distrusts do the will of the people.
This is the point of celebrating Magna Carta. The point David Allen Green misses in his otherwise excellent article.