Magna Carta (“Great Charter”) was a royal charter of rights agreed by King John of England at Runnymede, near Windsor, on 15 June 1215. Although more than 800 years old, it continues to feature in political and legal debate.

This Insight looks at the origins of the Magna Carta and examines which of its provisions still have legal force today. It also examines its unsuccessful use in the courts, for example by Occupy London protestors and individuals opposed to lockdown laws.

What is the Magna Carta?

The first version of Magna Carta was drafted by the Archbishop of Canterbury, Cardinal Stephen Langton, as a peace treaty between King John and a group of rebel English barons. This agreement was to be enforced by a council of 25 barons.

Within 10 weeks of being sealed in 1215 it was annulled by Pope Innocent III (England was then a Catholic country). Magna Carta was reissued by King Henry III in 1216, 1217 and 1225. All these charters were pieces of parchment with Latin text.

The Magna Carta only took what we would now regard as statutory form in 1297. This referred to the “Great Charter of the liberties of England, and of the liberties of the forest; confirmed by King Edward, in the twenty-fifth year of his reign”.

Myths about the Magna Carta

As Anthony Arlidge and Lord Judge (a former Lord Chief Justice of England and Wales) observed in their 2014 book Magna Carta Uncovered, many “myths” about the charter have grown up over the past eight centuries:

It did not immediately give us trial by jury, although when jury trial did evolve it came to be regarded as based on the Charter’s guarantee of trial by one’s peers. It did not offer sweeping statements about personal freedoms or human rights or fair trials and, in fact, for the most part did not establish general rights, but rather created or recognised privileges.

At the end of the 16th century, there was increased interest in Magna Carta. Contemporary lawyers and historians viewed it as an ancient English constitution which protected individual freedoms. Oliver Cromwell disagreed, apparently dismissing it as “Magna Farta”.

Nevertheless, interpretations of the Magna Carta were exported to the United States and other English-speaking countries over several centuries.

Is the Magna Carta still in force?

During the 19th and 20th centuries, most of the 1297 Magna Carta was repealed, largely by a series of Statute Law Revision Acts passed between 1848 and 1948 (and in pre-1922 Ireland by the Statute Law (Ireland) Revision Act 1872). These were drafted by the Law Commission and Scottish Law Commission to repeal statutes that were “no longer of practical utility”.

The former Parliament of Northern Ireland also repealed sections of the Magna Carta in 1955 and 1967, while the most recent changes were made by the Statute Law (Repeals) Act 1969. On that occasion the Lord Chancellor told the House of Lords there was no intention of repealing “famous” clauses which dealt with the “liberties of the people of England” but only those relating to:

obsolete aspects of widowhood and dower, the relationship between the Crown and its debtors, the making of bridges, the obstruction of rivers and putting down of weirs, and the treatment of foreign merchants in times of war and peace.

Today only three articles (or clauses) of the 1297 Magna Carta remain in force in every part of the UK except Scotland:

  • the freedom of the Church of England (clause 1)
  • the “ancient liberties” of the City of London (clause 13 in the 1215 charter, clause 9 in the 1297 statute)
  • a right to due legal process (clauses 39 and 40 in the 1215 charter, clause 29 in the 1297 statute).

The most frequently cited in political or legal debate is the last of these, which says that:

NO Freeman shall be taken or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

As Anthony Arlidge and Lord Judge have observed, on their own these three clauses have “a limited direct impact on modern law”, largely because more recent Acts of Parliament – as well as the European Convention on Human Rights – make more detailed provision for due legal process.

Magna Carta and the courts

In 1956 the English judge Lord Denning described Magna Carta as “the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”. More recently, in 2005, Lord Woolf (the then Lord Chief Justice) called it the “first of a series of instruments that now are recognised as having a special constitutional status”.

Nevertheless, the outstanding clauses of the Magna Carta have been of limited use in modern court cases. In 2012, Occupy London protestors attempted to use clause 29, the right to due legal process, to resist their eviction by the City of London from the grounds of St Paul’s Cathedral. In his judgment, the then Master of the Rolls (Lord Neuberger) said he did not consider clause 29 of direct relevance to the case. “Somewhat ironically,” he added, “the other two chapters concern the rights of the Church and the City of London, and cannot help the defendants.”

In 2021, the owner of a hair salon near Bradford put a sign in its window declaring that (the repealed) clause 61 of Magna Carta allowed her to opt out of lockdown laws.

That same year, a group of protestors attempting to “seize” Edinburgh Castle cited clause 61 as the basis. Magna Carta has never formed part of Scots Law.

About the author: Dr David Torrance is a researcher at the House of Commons Library specialising in monarchy and the constitution.

Photo by: House of Lords via Flickr