Rule Britannia: A Magna Carta for 2015

This is a critical moment for democracy in this country. We are in the midst of a structural, political and moral crisis - and a capricious election campaign which remarkably ignores the crisis we are in, except to exploit for party ends the imminence of Scottish secession.  The election will be decided under an obsolete electoral system unable to reflect the results of four separate multi-party contests.  Unlock Democracy has issued a statement setting out the dimensions of the current crisis for democracy which measures the quality of governance, the subjection of the executive to the rule of law and the protection of human rights against three key principles deriving from Magna Carta.  

Unlock Democracy joins with others in calling for an inclusive and deliberative Constitutional Convention to settle devolution throughout the UK and to lay the ground for a reformed state under a written constitution fit for the new digital era.  This statement is a draft document which is designed to inspire debate and inform the organisation’s future priorities and policies."

The statement has been drafted for UD by David Beetham and Stuart Weir, former partners in Democratic Audit at the University of Essex

Celebration of the 800th anniversary of the Magna Carta is underway in this country. The Prime Minister wishes to use the anniversary of the Great Charter, the short-lived constitutional settlement that the English barons imposed on King John in 1215, as an opportunity for every child to learn about “the foundation of all our laws and values”.

Magna Carta was and remains important because the barons forced King John to acknowledge that his rule was limited by the principles of the Charter, making him subject to the rule of law and guaranteeing rights to both the barons and his free subjects.  Among these rights were the right to freedom of the person and security of possessions, subject to trial by a jury of peers (i.e., equals) according to the law and without interference from the monarch. The Charter also guaranteed the ancient liberties of the City of London and other cities, boroughs and towns. Most controversially, the Charter spelled out the penalties to be applied if the monarch infringed these limits.  Early in its life, in 1217, the Magna Carta was complemented by the Charter of the Forest which re-established the principle that the ever-expanding lands appropriated as royal forest could not serve the exclusive use of the monarch, but remained available to all freemen for foraging and animal grazing, thus ensuring their economic livelihoods.

We must approach the idea of “celebrating”  the Magna Carta with caution.  The Charter has given rise to much bad history; and there is a danger that the substantial principles to which it has given rise will be swamped by a celebration that encourages a complacent belief in the uniquely British, or English, aptitude for democracy and freedom and their centuries’ old continuity and progress through our history.  We are assured that the rule of law has run almost continuously since 1215. The recent Conservative Party document that seeks to justify a breach with the European Court of Human Rights hymns Britain’s 
‘long history of protecting human rights at home and standing up for those values abroad. From Magna Carta in 1215 to the Bill of Rights and the Claim of Right in 1689 and over centuries through our Common Law tradition . . .’  

Magna Carta was of course written by barons for barons:  that is, by rich and influential feudal land-owners in their own interests.  However, it was a settlement that has subsequently been elevated and built on to inspire a never-ending struggle to bring king or government to account and establish the rule of law and human rights. Far from being a continuous process, this struggle has been half won and lost and half won again several times over, and has cost much bloodshed and injustice along the way.  The Magna Carta has been a significant moral and legal foundation for a struggle that is far from over.  Unlock Democracy believes that we should reject self--congratulatory celebration this year and use the old charter to hold our democracy up for inspection.  The anniversary should be the occasion for deliberative and informed public debate on the principles that have built on the Charter and the earlier tradition that inspired it; on close examination of our constitutional and political framework in 2015; and on how far this framework falls short of achieving the basic principles that derive from the barons’ revolt.  Let us then  not “celebrate” Magna Carta – let’s take the opportunity of the occasion to issue a rallying call for constitutional and political  renewal and the advance of laws and values that give us, as citizens not subjects, freedom under the law and democratic governance.

Unlock Democracy believes that there are three key principles embodied by the Great Charter and the Charter of the Forest which are still valid today:
1.    The principle that the executive should be subject to the rule of law, and accountable to Parliament and the people;
2.    The principle that there should be basic rights for all, protected from government intrusion and erosion and limited only by due legal process; and
3.    The principle that there is a public realm of common citizenship and essential public goods and space which ought not to be appropriated for private benefit.

In our view, each of these principles has been put under threat by successive governments and external forces, as we shall show.  Like the barons, we list a number of concerns and “grievances” which could provide the basis for a new Charter of Modern Democracy, fit for people in the twenty-first century. 

First, a summary.  Politics in Britain retains a traditionally democratic form, and may even seem to be reassuringly improved.  Politics is considerably more transparent than a generation ago. Proceedings in Parliament follow familiar patterns.   Reinvigorated select committees reach out to the public. Our judiciary remains robustly independent of government    Freedom of information laws open up government and the public sector to scrutiny.  The public and private activities of the political elite are subject to relentless media scrutiny.   

But we are in the midst of a structural and political crisis of the British state.  Last year’s Scottish referendum struck the exhausted fabric of the United Kingdom like a wrecking ball and has provoked damaging divisions whose impact on the forthcoming general election may be profound; and which may lead to the break-up of the United Kingdom. It has prompted divisive and unworkable proposals for “English votes for English laws” and has exposed  the weakness of a political system which cannot prevent major constitutional issues from being determined by a governing party’s sectional interests. It has inspired demands across the country for devolution and freedom from the oppressive weight of the Union’s over-centralised state.   The contrast between the intense political engagement of the Scottish public in the referendum debate and stale “politics as usual” has shown that the crisis of the state is also a crisis of our politics: distrust and discontent with the political class and parties is deep and widespread.  There is however the paradox that weak though their connect with the people is, the political parties in government still wield disproportionately strong executive power.  

We, the people, have no trust in politics and politicians.  We find that the Westminster culture is introverted, opaque, self-seeking, corrupt and remote.   We are badly governed by a party political elite, split into three clubs but sharing significant social characteristics:  This is an elite that seems to be driven more by self-seeking party advantage than by the public interest.  That is unwilling to engage in open and deliberative debate. That is hostile to judicial oversight and resists the rule of law. That is too arrogant to respond to the wishes of the people and informed advice from civil society organisations, charities and even its own agencies.

Two out of three us agree that the governing system itself is in need of significant improvement.  Surveys reveal that we feel powerless between elections and want more power.   The revelations of MPs fiddling their expenses - a feeble parody of practice in the private sector –  were an unforgettable shock.  They showed just how far the corruption of the public realm had gone.  Never mind that the majority of MPs are decent and hard-working people;  lobbying and other scandals continually reinforce the impression of a venal political system that is socially and economically remote from the majority of the public.   This dislocation is made deeper by a cleavage between government policy and people’s everyday lives.  Whereas the governments that the political elite controls seek above all to maintain the economy through the state’s complicity with corporate and City power, people in their everyday lives experience the uncertain consequences of the policies that ensue. 

The established political parties, the sinews of representative democracy, are widely held in contempt.  Paradoxically, the two main parties are as strong as they are weak; the electoral system and custom sustain them as cartel parties in and near political power; but they are dying on their feet. Less than one in a hundred people are members of a political party.  The elites that command them are as remote from their grassroot members as they are from the general public.   For all emphasis on “strong government” that is deployed to justify majoritarian party rule, they fudge politically awkward decisions and retreat from necessary long-term policies.  They do not engage with the public directly, but instead channel their activities and messages towards particular audiences. Their main source of contact is mediated through the broadcast and print media in circular dialogue with media professionals, the party politicians observing the evasive discipline of cleaving to a pre-determined message;  their interrogators seeking to expose deceit, real or assumed, and trying to trick them into “gaffes”.  The dictum wrongly attributed to Jeremy Paxman, ‘Why is this lying bastard lying to me?’, seems to dominate these exchanges.  The solution might be to give straight answers to questions. 

Despite continual evidence that we as a society have an abiding interest in politics, and in a wide variety of political issues, a democratic deficit exists between most of us and party politics.  Causes arise and overflow on the social media where the unrepresented vote-less young are especially active. Some causes inspire both traditional and new modes of protest.  Ultimately, the resentment about the democratic deficit stems from the refusal of governments of all shapes and colours and the political parties to observe the obligations of  representative democracy.  Representative democracy doesn’t mean that we govern ourselves, but that governments which we elect are responsible to us and act in our interests.  A main task of representative government is to hold a balance between the private interests of the rich and powerful and the general interest of the population at large – the public interest.  Archaic constitutional institutions and unreformed practices intensify the dislocation between rulers and the ruled: they confirm both the exalted insider status of the political class and reinforce the outsiders’ sense of being powerless and unheard.  For all the tours that MPs lead around the building, even Parliament itself constitutes an institutional and political barrier to the people.  
We have  two major concerns about the way in which recent governments make use of the power of Britain’s highly centralised state.  

First, they put their virtually unrestrained power at the service of global corporate and financial institutions that wield considerable economic and political power over Britain and across the world rather than employing the power of the nation state to moderate their conduct for the public good and to curb their infiltration of our politics and governance. But our governments act in the interests of these institutions at the expense of the people and encourage and assist them to invade and take over public services and the public realm.  We are experiencing a modern enclosure movement.  As we shall show, the higher echelons of the state, politics and business share a common sense of  purpose -  the dominion of government over us is symbiotically related to the greater dominion of the global corporate elite.  

Secondly, the state maintains through GCHQ what is reputably the most invasive system of mass surveillance in the world, intercepting everyone’s telephone calls, emails, texts, etc, and plotting their personal internet histories, outwith effective legal oversight.  GCHQ shares surveillance information with the United States. Our security agencies collaborate intimately with US agencies in counter terrorism activity, even to the point of complicity in illegal rendition and torture of prisoners which is unlawful under British law.  The rule of law does not operate in this secret realm which subverts the balance of power between the state and the citizen. A senior chief constable has warned that police officers in the UK are being turned into “thought police” under drastic anti-terrorism legislation.   He was particularly alarmed that the “fine line” between free speech and extremism is being decided not in Parliament and civil society  but by “securocrats”, including the security services, government and senior police officers.  Instead of being ruled under the first principle of representative government – that is, that the people control the state through the ballot and representative institutions – the state is taking control of our lives as citizens. The surveillance structure is already mis-used: it extends to spying on legitimate grassroots protesters and even to the privileged communications of lawyers with clients and of  journalists.  Such conduct has a chilling effect on free association, free speech and public protest and has the potential to be an oppressive instrument of authoritarian rule in the wrong hands.

Yes, the vote remains.  But our elections are losing legitimacy for two reasons.  First, because the electoral register – the very foundation of electoral democracy - is incomplete and biased in its composition. Secondly, because the “first past the post” (FPTP) electoral system, as is well known,  produces disproportionate outcomes and is too clumsy to reflect the  societal changes that are rapidly reducing previous loyalties to the  major political parties.  General elections are no longer “general”.  Five to six parties are being crammed into a two-party electoral system in England, Scotland, Wales and Northern Ireland with unpredictable results for the whole country. We are entering into an era of electoral lottery.

Guest blogger: Stuart Weir