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Magna Carta 800 years on: faded lustre and family law

Date:17 JUL 2015
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'I am here because these proposals appal me, because of what they will do for access to justice for those who are most vulnerable, and about the quality of justice which our system provides.' (Dinah Rose QC, 4 June 2013, the Demonstration to Save Justice, outside the Ministry of Justice.)
The stage in June 1215 could not have been more different to that in June 2013. From the water meadow at Runnymede, to the concrete of the Ministry of Justice. From feudal barons and an embattled King John, to silks cloaked with megaphones and indignation. Listen carefully enough, however, and the rhetoric is remarkably similar.

A Carta of Fundamental Principles

The vigour of many of Magna Carta’s 63 clauses has been lost to the passage of time: gone is the requirement that 'heirs … may not [be given in marriage] to someone of lower social standing.' No more do we hear of 'wapentakes' and 'trithings'!

A handful of its core principles, however, possess a lustre that has, for 799 years, illuminated the historical development of English jurisprudence. Foremost amongst these are clauses 39, 40 and 61: no-one will be punished except by the law of the land; to no-one will rights or justice be denied or delayed; and, all (including the King) are subject to the law.

Such principles resonate deeply: from Lord Camden’s assertion that the ransacking of the home of the Grub-street writer, John Entick, was justified only if countenanced by statute or common law (Entick v Carrington, 1765); to Lord Atkin’s seminal, dissenting judgment in which he rebuked those who permitted coercive action except as justified by law (Liversidge v Anderson, 1942).

Indeed, such is the Charter’s influence that its principles prevail far beyond national boundaries. The tale of the Massachusetts Assembly’s response to the Stamp Act 1765 is well known. Less famous is the account of an Indian hill tribe involved in a dispute with their government about forest rights. Their elders were discovered sacrificing an animal to appease a distant but omnipotent deity: 'We know nothing of him', the elders announced, 'but that he is a good god, and that his name is the Judicial Committee of the Privy Council.'1

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The Tale of the Breach

That lustre is fading – for that, one need look no further than the prevalence of anti-human rights discourse, and the restrictions to legal aid. Pursuant to sections 2, 3 and 6 of the Human Rights Act 1998, the European Convention on Human Rights is enforceable in English courts, providing protection to a motley crew of gay soldiers, a murdered prisoner, and elderly lovers.2

The universality of these rights, however, is coming under increasing pressure. Smote by rulings on whole-life sentences, the enfranchisement of prisoners and the deportation of alleged terrorists, the rhetoric of successive governments speaks of limiting their reach. Much of the ire has been directed at the European Court of Human Rights – despite it, last year, dealing with 1,652 applications against the UK, of which in only 8 did the Court find a violation of a Convention right.

In his speech at the Conservative Party Conference 2014, the Prime Minister vowed to 'scrap it [the Human Rights Act] once and for all'. Whilst talk of reform has been couched in the language of a British Bill of Rights, the perceived wrong that this would remedy is the very universality that many treasure. When set in context, it is hard to see how a reformulation of human rights legislation would do anything but limit the application of those principles.

In 2010, the Government pledged to reduce the £2bn legal aid budget by £350m a year for the next 5 years – as given form, in part, by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The swingeing cuts have been felt across the system; perhaps no more so than in family cases, where section 9 and Schedule 1 provide that funding is no longer available in private law children cases, except where there is domestic violence or in accordance with section 10’s ‘exceptional’ circumstances.

What does this mean in practice? In economic terms, it means a false economy: cases without lawyers take 50% longer.3 Morally, the effect is more invidious still. Of 821 family applications for ‘exceptional’ funding, just 8 met with success;4 in private children proceedings, over 60% of parents are unrepresented.5

Here, injustice lurks. In October, a father with significant cognitive impairment fighting the removal of his son slipped into an increasingly familiar lacuna: no funds for representation; no legal aid; factually and legally incapable of representing himself. The President of the Family Division felt compelled to intervene: any requirement that the father face the application without proper representation would be 'unconscionable… unjust… a denial of justice.'6

A Call to Arms?

Flagrant breaches of the Charter at the hands of successive executives have invigorated those who advocate its fundamental principles. Sir James Munby and Dinah Rose QC are but two voices in a chorus of campaigners, lawyers and politicians. The House of Lords too has proved passionate in its criticism: acting as a bulwark against the most egregious incursions.

The difficulty, however, remains: civil liberties, access to justice, and the universality of rights are, by definition, slow, unwieldy and problematic for an executive. To recast the famous aphorism: it is not such principles that ‘got the trains running on time’.

The question then is whether the opposition of today’s barons and baronesses is sufficient to prevent a further loss of lustre. The answer? Where all are subject to the law, it is those who write the laws who rule. In this, Magna Carta may just have sown its own undoing.

1 Lord Pannick quoting James Morris’s Pax Britannica in the House of Lords.
2 Smith and Grady, 1999; Zahid Mubarek; Beryll and Richard Driscoll.
3 Implementing reforms to civil legal aid, National Audit Office, 20 November 2014.
4 April 2013 – March 2014.
5 April – June 2014.
6 In the Matter of D (A Child), 2014.