Rory Broomfield is Director of The Freedom Association, where he is Director of the Better Off Out campaign.
The debate around Scottish Independence has quite rightly led to questions about what will happen with regards to currencies and debt levels. However, there should also be a debate over what the Scots, English, Welsh and Northern Irish stand for, regardless of which way the vote goes next week.
If Scotland votes Yes in the referendum then there is an obvious case for this to happen on both sides of the border. Those resident in Scotland, voting for independence, might wish to recapture the principles articled in the Declaration of Arbroath while the English, Welsh and Northern Irish could see this as an opportunity to renew or restate their own principles and ensure they can be upheld in either Parliament or the Courts.
The breaking up of the United Kingdom (as it is currently constituted) gives the people the opportunity to, at the very least, restate their nations’ guiding principles. These principles, as expressed by the Rt. Hon John Redwood MP on his blog and at The Freedom Association’s McWhirter Memorial Lecture, helped to foster individual freedom under law both within the United Kingdom and throughout the globe.
However, if Scotland votes No to becoming an independent country and wish to remain part of the United Kingdom, a new Magna Carta – or statement of first principles – is needed. This is because the freedoms that were partly formalised by documents such as Magna Carta have come under pressure over the past few years as governments of varying political colours have sought to undermine the rights of the individual.
We should remind ourselves that there are only three out of the original 63 articles of Magna Carta still active in English and Welsh law* and even these are being undermined. As a result we have seen plans put forward by HM Revenue and Customs to take tax directly out of bank accounts, the introduction of Secret Courts by the Justice Department and the Home Office’s plan to opt back into the European Arrest Warrant – an arrangement that undermines the guarantee of a free and fair trial to those living in the UK. Recently the arrest of Ashya King’s parents for trying to do the best for their child is also an example of how the law and the process has become too removed from the people.
However, we can also see encroachments into the life of the individual specifically in Scotland, such as in the Scottish Government’s sinisterly termed “Named Persons scheme”. This scheme gives legal power to agents of the state to oversee a child’s welfare, to supervise their upbringing and intervene without the consent of the parents and has already lead to cases of interference and distress.
Magna Carta: Nearly gone but not forgotten.
Some may argue given that there is so little of the original Magna Carta remaining in the UK legal system today that we might as well forget it. This would be a mistake. It not only helped to guarantee freedoms for those in England and Wales but has proved a platform for the instalment and assurance of freedoms for the people of Scotland and even to this day informs the legal systems of other countries around the world.
This is not to say that all the articles in that Great Charter should be introduced as obviously some no longer apply to the 21st century; nor does it mean that Magna Carta is the only document in which legal traditions in the UK are based (it is not). However, when we have politicians at home and abroad looking to change the legal traditions within the UK there is a case for renewal.
This is certainly true because of the increasing influence of both the European Court of Justice and the European Court of Human Rights. Both institutions affect the lives of people living in the UK through rulings on everything from which vacuum cleaners you can buy to extradition from the UK. It means thousands of new regulations and three out of four ECHR cases being made against the UK by judges that sometimes do not possess legal qualifications.
These arrangements mean that even our elected politicians aren’t answerable to the people as they once were – and that those who are elected do not have direct influence over the rulings of courts that exist elsewhere but still informs British law.
We need a restatement of first principles. These principles need to install the primacy of freedom under law, as inscribed on that Magna Carta Monument in Runnymede, but also help to both recapture the primacy of people over the state.
It was once said that the state should be the servant and not the master. We should take the result of the forthcoming referendum as an opportunity recapture this sense – both between the people and the state and between the peoples themselves.
*Clause 1 concerning an official Church; Clause 9 on legal privileges for the City of London; Clause 29 regarding imprisonment contrary to the law.