Is it time for a new Magna Carta?

One of the world’s most distinguished experts in English legal history spoke to NZLawyer about whether the time really is nigh for a new Magna Carta in the digital age.

Is it time for a new Magna Carta?
This week in New Zealand, Australia, Canada, the United States and the United Kingdom commemorated the 800th anniversary of one of the founding documents of the modern justice system – Magna Carta, or ‘the great charter’.

Statutes making up New Zealand’s constitution feature clauses from the 13th-century document, which, among other things, outlined basic rights including that no person was above the law and every person was entitled to a fair trial.

“Over time, Magna Carta has come to represent a number of fundamental principles including the protection of human rights, freedom of religion, the right to justice and, most importantly, the rule of law,” Attorney-General Christopher Finlayson said on Monday.

But there have been calls – including from the ‘inventor of the Internet’ Tim Berners-Lee last September – for a new internet bill of rights to ensure greater privacy.

One of the world’s most distinguished experts in English legal history says it is not necessary.

Oxford University’s Professor Paul Brand recently visited New Zealand on a grant from the New Zealand Law Foundation to present a seminar at the University of Auckland.

He took a moment out of his busy schedule to sit down with NZLawyer.

“Magna Carta as we have come to see is the beginning of a whole series of developments in the common law – the legal system that New Zealand shares with England, with Australia and the Americans. Magna Carta is the earliest bit piece of legislation that is remembered within that tradition.”

The most important surviving feature of the document is the promise not to deny, refuse or sell justice; or to imprison arrest or dispossess individuals except by due process of law, Brand said.

“And while Magna Carta itself is not very specific about what that means, or how it is to be enforced, it is the beginning of a tradition both of more explicit legislation, and also legal interpretation that comes to mean significant constraints on governmental power – the power of the state, originally the power of the king – over individuals in societies that share the common law tradition.

“It’s like a building block at the bottom of a building that isn’t currently bearing any weight, but if you took it out, it would mean that the building would gradually collapse. It’s a framework for some of the very important features of the legal system that we know.”

No need for a new Magna Carta in the digital age

Professor Brand does not believe there’s a need for a new Magna Carta in the digital age.

“I think that the technology and the possibilities of the digital age are so continually evolving that it would be difficult to come up with a relatively simple set of formulas that would go on being applicable into the indefinite future.

“But that doesn’t mean that I don’t think that our individual privacy and our individual security of much intrusion into our lives by governments isn’t an important issue – I do. I just don’t think it’s very susceptible of an easy formulation of a new Magna Carta.”

Professor Brand said while Tim Berners-Lee call for one made for a “lovely soundbite… it doesn’t help us in coming up with the kind of formula that would be needed.”

“And I think we may be in a particular historical moment in which, for all kinds of reasons, we might be more sympathetic towards more government intrusion to ensure our security, than I hope would be true in the longer term.” 

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