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tv   Magna Carta Legal Heritage  CSPAN  August 19, 2015 11:14pm-12:01am EDT

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brin da hale, for a nem commerative lecture. justice hale explains how the magna carta influenced the rights, liberty and property to limits on executive power. this program is 50 minutes. today's lecture will the on the magna carta. a document of great historical significance to the rule of law. the 800th anniversary of which will be two weeks from today. and we are honored and privileged to have as our lecturer the deputy president of the supreme court of the united kingdom, the honorable baron es hale of richland. let me describe the historical
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feats that the lady has herself accomplished. she is the first and as far as the only member of the supreme court to be a woman. she was the first and only law lord that was a woman in 1999 when she was appointed to the court of appeals and only the second woman appointed to the court of appeals and privy council. she was the first high court judge to come from an academic and serve ant. she had been called to the bar in 1969 and in 1989. when she practiced law briefly in manchester, she decided the ratio, as much as she had seen in cambridge, she was one of six women in her class. she was the only one to get a star first for exceptional distinction. she became an academic at manchester city specializing in family law, wrote a series of books on family law, including case books on parental responsibility on mental health. and her book on women in the law
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in 1984 has been described as a ground-breaking analysis of the way gender in equality was codified in british law. in 1984, she became the first woman appointed to the law commission, which is a law reform body and was instrumental in the passage of the children's act of 1989, which has been described as the single most important piece of legislation for the protection of minors in the united kingdom. she was also instrumental in the family law of 1996, domestic violence and the mental health act of 2005, which permitted mentally incapacitated to participate in as many of those decisions as they were capable of and protected themselves in other circumstances. as you would expect, she had an extraordinarily distinguished career throughout her life. and this lecture is herself entitled a lecture of biography. but that is not what we have today.
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we are extremely honored and privileged to have here with us. and i ask you to welcome baroness hale of richmond. your honor. >> well, thank you very much indeed for that introduction. very flattering and quite undeserved. and for the invitation. it is wonderful to be here in this courtroom of all courtrooms to be able to talk about magna carta. yes, magna carta not the magna carta. our shared heritage. both our supreme courts are surrounded by reminders of magna carta. the great doors are adorned with a bronze relief of king john granting the charter. in addition to the 1297 charter is is the first document that the visitor sees when entering your museum of the national a
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archives before going upstairs to see the declaration of independence, the constitution, and the bill of rights. and above the doors leading into the building which now houses the supreme court of the united kingdom, there is a stone relief of king john granting the charter. and leading into the entrance hall into our library is a facsimile of the 1225 charter with its most famous guarantee highlighted to no one will we sell, to no one will we deny or delay rights to justice. those words from chapter 40 of the original charter, together with the original chapter 39, no freeman shall be arrested or imprisoned or diseased or outlawed or exiled or victimized. neither will we attack him or send anyone to attack him except for the lawful judgment of his
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peers or by the law of the land. those words still have the power to make the blood race. as the greatest judge in britain of this century have said, that is corn hill. they are the embodiment of life, liberty and property. not to be infringed without due process of law, still to be found on the statute book of the united kingdom and in the 5th and fourteenth amendments to the constitution of the united states. my own blood raised too a few weeks ago after the last parliament had been dissolved when i received my own writ of summons, giving me exactly 40 days notice of "a certain parliament to be holden at our city of westminster". harking back, i felt sure to chapter 14, to obtain the common council of kingdom out an aid, we will be summoned the
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archbishops, abbotts, earls and graeter bands, individual letters. and in addition we will be caused through our bailives for a fixed state namely after the expire of at least 40 days and to an affixed place. this is the foundation of a second principle which we can trace at least as far back as magna carta that people for whom the taxes are levied should have a voice in deciding who they should be. and no taxation without representation, i understand has a special significance in the district of columbia. as i also understand it was the ignoring of that principle which lost us the american colonies. i ought therefore to protest myself.
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because as a member of the house of lords, i do not have a vote in the election of members of the house of commons. after all, i got my own writ of summons before the election which decided who those members were to be. and since they left the house of lords to become the supreme court of the united kingdom in 2009, neither do i have the right to sit on any parliamentary business in the house of lords. so i am doubly disenfranchised. perhaps i should go to strassberg to protest with the prisoners and others who don't have a vote in our country. another of my favorite provisions from the original charter is chapter 45. "we will not make judges, constables, sheriffs or bay lives as no of the law of the kingdom and mean to observe it
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well. that's rather a good phrase, isn't it? this is but one of the many embodiments in the charter of the third ideal with which it is most associated. the idea that the king and his officials were as much subject to the law of the land as were the rest of his people. the rule of law is not one-way traffic. the law the governors have to obey it too. and indeed by chapter 60 of the original charter, the customs and liberties which the king had granted to our men, meant by men, the bounds had also to observe towards their men. they cascaded down through the futile ranks. these three great ideas, the essentials of modern constitutionalism, can all be found in the original magna carta of 1215. when i get to the end of my lecture you will see there is still a debate about whether and means and or and means all.
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the idea that deposit rests upon the consent of the governed and the idea that the government as well as the governed is bound by the law. no matter the laws get so excited about it. all three ideas do of course beg for question of where the law comes from and who makes it. but i'll come back to that. historians, at least in my cup, tend not to be so excited about the magna carter of the 15th of june of 1215. they point out it was not so different from the charters of other kings. much of its contents were simply reaffirming generally understood principles of futile law. and above all, that its most radical provisions were soon dropped. while the story of how the baron succeeded the king is quite exciting.
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the story i have next is i think even more exciting. only a few days after the charter was sealed on the 15th of june, king john asked the pope iii to release him from his oath to observe it. and on the 24th of august, the pope obliged. king john had sworn to the pope and the pope owed him something in return. he denounced the charter as extorted by such violence and fear as might affect the most courageous of men. the baron tried to make him to do so. and declared the charter null and void for all validity forever. so you might have thought that was that. the result was civil war between the barons who extorted the charter and the king and those loyal to him. it looked as if the barons were
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going to lose until prince louis, to whom they had already offered the crown, to invade. the french are a lot of trouble in my country. and this he did. in may 1216. he laid claim to the throne. both by hereditary succession. unremarkable but untrue. and by election by the barons. but he didn't promise to abide by the charter. it looked as though john was heading for defeat when he set out across the wash. the wash is a large, shallow bay in the east of england. he was crossing it in order to reinforce his garrison. john made it across the wash. but most of his baggage did not and sank into the sounds. he struggled on to newark, south of lincoln, but died there on
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the 18th of october. thus, as recorded in a book called "1066 and all of that," which is known -- which is advertised to comprise all the parts of english history which you can remember. in other words, it's mostly wrong. "john finally demonstrated his utter incompetence by losing the crown and all his clothes in the wash." and then dying of peaches and no cider. thus his awful reign came to an end. his body was conveyed to abbey for burial. things did not look promising for his heir, 9-year-old son. but earl of pembroke, the king's most loyal serve ant quickly took chart. with accurate of the colonel, he arranged for henry's coronation in gloucester and was appointed
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regent of king and kingdom. the court traveled to bristol, which was then the second city in the kingdom. i myself am pleased to know that because i am chancellor of the university of bristol. so i have a strong connection with that city. and so a great affection for the fact that in bristol the king was advised top reissue magna carta. and this was sealed by marshall and the cardinal because the boy king had no seal of his own. now, this, the magna carter of 1216, which is also reissued in 1217, formed the basis for the magna carter of 1225, which king henry granted where he had acquired a great seal of his own. and those are the ones that really matter.
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the 1216 charter is very different than the one exacted by the balance. they might call it a typical english compromise. designed to reassure the barons the legal rights they cared about most were preserved but also to preserve the status of the monarchy. most importantly, it didn't contain the original chapter 61, which had given to 25 barons to be chosen by the rebels, extraordinary powers to enforce the provisions of the charter against the king and his officials known as the security clause. these powers were what most invoked the indignation of the pope. some required that it be dropped because they were deemed specific to the political situation in 1215. other chapters were described in the 1216 charter as important yet doubtful. isn't that a clever phrase? and so they were to be "deferred until we have full council then
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we will most fully in these as well as other matters that have to be amended do what is for the common good and the peace and the state of ourselves and our kingdom." and among these were the chapters dealing with aides including my favorite chapter 14 are summoning the common council, et cetera, et cetera. of course the principle of no taxation about consent came back in other ways. and it was because of these exclusions that the famous chapters 39 and 40 of the 1215 chapter were formed to combine chapter 49 of 1216 and all subsequent charters, including the charter of 1297, which was a nulled on the english statute
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book. making laws having emerged during the 13th century. in granting the 1297 charter, edward the 1st did no more than quote the 1225 charter of his father henry iii. you would of course know this because there is one of those 1297 charters in your national archives. and of course you can read it, can't you? despite the writing. anyway, three significant changes to the 1225 charter and the 1297 from the 1215 and 1216 charters. it was granted by the king "of our own spontaneous goodwill." it was not granted on the advice of his counselors who merely witnessed it. but "in return for this grant and gift of these liberties, the
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archbishops, bishops, abbotts, earls, barons, knights, freeholders and all of our realm have given us a 15th part of their moveables." a tax. no longer a product of coercion, it was nevertheless a contract with the people. liberty and the rule of law in return for the taxes the king needed to maintain his state and wage his wars. but henry iii was still around in 1225 to reissue the charter. it was largely due to william marshall, his regent, the best knight in all the world. in 1217 he and the loyalists defeated the french army. the french fleet was defeated in a battle in sandwich and kent. they promised never to assist the rebels again. the rebels were pardoned. they were still ex communicated but that didn't matter quite as much. as having their lands restored
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to them. and as the historian david starky puts it, "magna cart ta was revolutionary. the idea of monarchy was shaken to its foundation. the republican challenge was real. it all ended in a classic english compromise was not inevitable. but the central ideas of magna carta were retained in the reissue of the charter in 1216 and became invaluable." so let's fast a forward now to the 17th century. the century of the english revolutions and the century of the english colonization of america. english laws are not entirely forgotten in the intervening years. magna carta was after all on the statute book.
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putting them into effect had been developed. magna carta was first print indeed latin in 1508 and in english in 1534. i believe you have on show downstairs a couple of one of the early english printings of magna carta, which is a wonderful thing to be able to see. lawyers would also be familiar with the treatises on the laws and customs of england. glanville writing, before nag that carta, said what pleased the prince has force of law. but brackton writing in 1250, after magna carta, said whatever has been rightly written and approved a general agreement has the force of law. the king in parliament in other words. he explained the king not to be subject to man but to god and the law. you might also be familiar with the chief justice under henry vi
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when he said that the king of england cannot alter neuer change the laws of his realm at his pleasure. he can neither change without consent of the subject yet charge them with strange imposition against his will will. he was given almost mythical powers in 1606. just as the battle between common law courts and the powers of the king were developing nicely between the king and parliament. the three ideas that a person should not be deprived of liberty or property without due process of law, there should be no taxation without common consent and that there there
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were limits to the royal prerogative featured prominently in each of those battles. the great charter of the liberties of england 1868. he was an elder statesmen and sacked as kings did in those days for unpopular decisions in 1616. present build i cook to the house of laws. accepted by them and reluctantly and aoe equivocally the taxes he needed to raise. the history was such that they probably don't. the king tried to rule without parliament. that was a civil war between the
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royalists, also known as cavaliers, were wrong but were romantic in 1866 and all of that. and the parliamentarians, round heads, who were right and repulsive. that's about correct actually. the round heads won the war. the king was put on trial for treason and executed. they were met by "the good words in the great old charter of england." to no one will we delay justice is what they meant. but conquerer cromwell was not a great respecter of civil liberties either. that's according to clairen don, history of the rebel yon. whether it's an accurate quote who can say. but according to clairndon,
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historian, the monarchy was restored in 1660, but once again became precarious when james assesses his powers. the glorious revolution of 1668 was the result.. william married to james' daughter, mary, was invited to invade. james fled. parliament of crown to them both but on conditions. the bill of rights in 1669 and the sovereign rty of the king in parliament was firmly established. the king alone could not make law or suspend or dispense the operation of the laws which parliament had made. the bill of rights also prohibits successive bail and cruel and unusual punishment. but it is mainly about the power of par a lament and not about the rights of individuals. meanwhile, while all these exciting things were going on in the old country, the english
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were establishing their american colonies on the other side of the atlantic. the royal charter in virginia in 1606 was partly the work of cook and asserted they were to enjoy the same rights as the english possessed in the homeland. some colonies chose to create their own magna carta like institutions such as the body of liberties in massachusetts bay, the first sector reads remarkably like chapter 29 of the 1216 charter, except he also refers to the word of god, which was not of course particularly prominent in the early versions. william penn is credited with the first printing of the great charter and used it in framing the laws of pennsylvania. he had had of course firsthand experience of the battle for english liberties before he came over here to found the colony. so it was the magna carta which
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motivated -- was it the common law or magna carta which motivated the declaration of independence in 1776 and the framing of the new constitution in 1787. you will know much better than i the answer to that question. but it seems to be obvious that the denial of their heritage as englishmen would have played a part in the demand for independence. but the framing of the new constitution would have needed something more. the lawyers would have known all about the writings and also of blackston the academic scholar of english law who in 1759 had disentangled the different medieval versions of magna carta. they would have known about the struggle for civil liberties in central britain. the colonists had no vote which was now sovereign and could
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override their ancient rights. which they directed to propose taxes on them without representation, they could cite magna carta and declare their independence. on the other hand, important though the appeal to ancient history is, the framers of the constitution were looking to create a new model of government. magna carta had at least three defects from their point of view. it was a grant from the king rather than the work of the people. it could be overridden by a sovereign parliament. and it limited only the operation of government and not of the legislator. the king in parliament was sovereign. and invested the constitution that they adopted with its authority. they were soon persuaded it was also necessary toenshrine the bill of rights. did its motivation come not so much from the appeal to ancient
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history but the appeal to nature and reason? from the puritan between god and his people and john lock's theory of natural rights. as i say, you will know the answer to that much better than i do. there's an awful lot of writing about it. be it as it may, having marched together two centuries, they went their separate ways for the next two centuries. we in the united kingdom had to wait until the human rights act of 1998 before we had a proper bill of rights which sought the citizens of the united states of america were recognized. this developed after the universe and declaration of human rights in 1948, which eleanor roosevelt described as
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an international magna car a ta of all men everywhere. impatient at the lack of progress by the united nations in translating aspirations into binding obligations in international law, the council of europe enshrined similar political rights in the european convention on human rights of 1950. article v, protecting the right to liberty and security of person, bears a remarkable example for chapter 29 of magna carta. the jurisprudence of the european court of human rights gap to develop in ernest once member states accepted the right of individual to petition the court against their own governments. many of the seminole cases which established the fundamental doctrines by which the conventions interpreted came from the united kingdom. the complacency against the english loyals who thought that it embodied rights which for the
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most part the english had enjoyed for century shaken by a number of adverse decisions in strasberg. eventually parliament decided these rights should be the rights of united kingdom law and forcible in the united kingdom courts. it is still not a proper bill of rights in the american sense or indeed the sense of many other written institutions in the modern world. uk courts do not have the power to strike down a progression in an act of the united kingdom parliament, which is incompatible with the convention right. all we can do is so far as it is impossible, we can interpret the provision so it is not incompatible. there is an amazing amount you can do with interpretation. i won't give you any examples now, but there is a lot we can do. for if this is not possible we can make a declaration of incompatibility. parliament then has three choices. first, it can swiftly approve a
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remedial ordering council which removes the incompatibility. that's suitable for simple cases. second, it can pass an act of parliament providing a comprehensive scheme to deal with the incompatibility. third, it can do nothing and risk the wrath of the council of europe. so far all the 19 surviving declarations of incompatibility have been acted upon by the united kingdom parliament. so most of the time it works. the one exception is that they have not yet brought themselves to amend the so-called blanket ban on sentenced prisoners voting in elections. when they do that, can they please tack on those lords who can't vote and play a part in the house of lords can vote. of course not only that, what
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parliament has granted parliament can take away. the conservative party manifesto before the recent general election promised to "scrap the human rights act and introduce a british bill of rights. this will break the formal link between the british courts and the european court of human rights and make our own supreme court the ultimate arbiter of human rights in the united kingdom." i wish. however, in the speech to the new parliament last week, the new government promised only to bring forward proposals for a british bill of rights. so we shall have to wait and see what they contain. the human rights act has given us the tools with which positively to protect the fundamental rights against the organs of the state. but it has made us think rather harder about the content of fundamental rights in the common law. and to wonder whether we, too,
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have a concept of constitutional statutes different from ordinary acts of parliament. all of this has been taking place against a back drop of the atrocities of 9/11 and later international developments, which have brought new challenges to the fundamental values we associate with magna carta. we tend to think that the american courts are far more conscious of magna carta, though we are. steve son calculated in 1991 that between 1940 and 1990, the supreme court of the united states had cited it in more than 60 cases. we have found another 31 u.s. supreme court cases since then, including nine in the last ten years. as far as we can discover, it has been referred to in judgments only 24 cases before the house of lords, the judicial committee, council, and the uk supreme court.
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but six of those are in the last 10 years. does this indicate a renewed interest in the values it embodies? in 2003, in the court of appeal, lord justice laws held that there is a category of constitutional statutes, including magna carta, but also the european communities act of 1972, which cannot be implied repealed or modified by a later ordinary act of bond. and last year the supreme court questioned whether one constitutional statute could impliedly modify another. the case was a challenge to the government's decision to gain planning consent in the powers that the construction of a new high-speed rail link between london and the midlands. apparently it's not going to go to scotland which is not going down well in scotland.
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and the challengers argued that parliamentary scrutiny would be in adequate to comply with the european directive on environmental impact assessments to which of course we are bound by the european communities act. until the case got to the supreme court, no one had taken the point that for us to inquire into the adequacy of the parliamentary process would be contrary to article 9 of the bill of rights of 1689 which provides that "freedom of speech or debates or proceedings in parliament not to be impeached or questioned in any court or place out of parliament. lord new berger and a joint judgment in which the rest of us all agreed referred to a number of constitutional instruments, including magna carta, 1628, and the bill of rights 1689. and continued.
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it is certainly arguable that there may be fundamental principles whether contained in other constitutional instruments or recognized at common law of which parliament which passed the act in 1972 did not contemplate or authorize the aberration. this is heavy stuff. for those of us who were brought up to believe that par la. can make or unmake any law. it falls well short of constitutional infringement. not only that, our courts have become more vigorous in applying the principle of legality by which parliament is presumed not to authorization a fundamental right unless it does so in plain language. so that any parliamentarian would understand what was at stake and be prepared to take the political risk in agreeing to it.
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fundamental rights are not to be overwritten by general or ambiguous words. this means, i think, that three of the earlier cases in which magna carta was mentioned in judgments of the house of lords might have been decided differently today. in case halladay during the first world war, the majority of the housing laws decided that the broaden abling powers of the defense of the match in 1914 permitted regulations to be made which authorized the internment of persons with "hostile origins or associations." lord shaw disagreed. the most famous provision of magna carta itself could not be an regated in this way. he poured scorn on the majority view. no rights be as ancient as magna carta, that laws as deep as the foundation of the constitution, all are swept aside by the in the executive.
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then again, during the second world war, in two cases green and the secretary of state of affairs and anderson, the majority held that the home secretary's power to authorize detention where he had reasonable cause to believe that the grounds existed, did not mean that he actually had to have reasonable cause. only that he had genuinely to think that he did. they rejected counsel's arguments that took away the fundamental rights to liberty and due process covered by magna carta had to be narrowly construed. interestingly, in his famous descent, he did not refer to magna carta at all. he regarded it as a simple
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question of the meaning of words. the only authority he could think of for the view taken by the majority was humpty dumpty. "when i use a word, it just what i choose it to mean. neither more or less. the question is whether you can make words mean so many different things. the question is, said humpty dumpty, which is to be master? that's all. i told you you could do a lot with the meaning of words, didn't i. maybe not retuck lance to rely on magna carta, these regulations put magna carta in the dust bin. i do not know. these days, while i believe we would share his view of the words themselves, we would also take the view that any legislation interfering so drastically with the liberty of the subject should be strictly construed. and the relaxed view taken by the majority of the house of
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lords to the deprivation of liberty in times of war contrast with their much stricter view taken of the deprivation of property. in both the central control board, and the more famous attorney general under keyser's royal hotel, they contrived to find that wartime property have not deprived the owners of their rights to compensation. and lord palmer in each case opined that at least since magna carta they had no prerogative power to confiscate property for its own benefit. these days we would have to judge such cases not only against the fundamental principles of common law but also against the human rights act. but even some deregationt have
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to be justified. we held the power given to the executives shortly after the atrocities of 9/11 to sustain suspected foreign terrorists without trial was unjustifiable discriminatory against foreigners. if there was a real need for such a measure, we have plenty of homegrown terrorists of our own who needed it too. i like to think with or without the human rights act, we would have reached the same conclusion as the majority of your supreme court in the most famous of those nine recent cases in which magna carta has been cited in that court. under the human rights act, it would have been easy. the convention rights protect everyone, alien or citizen, who is within the jurisdiction of the united kingdom. those who are detained by british authorities anywhere in the world are undoubtedly within united kingdom's jurisdiction.
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article 5:00 of the convention therefore applies not only must there be good grounds for retaining them but the existence of grounds must be approved before an independent tribunal established by law. it would have been a little bit more complicated. but aliens are undoubtedly able to apply for habeas corpus. the test of whether the writ were run against the british authorities is is whether they have sufficient control of the person detained. i rather hesitate to mention this. but our court recently held that that test was satisfied in the case of a pakistani man detained by the british authorities in iraq but handed over to the american authorities who then transferred him to babylon in
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breach of the memorandum of understanding which would be made between our two countries. and we held that we could therefore issue the writ of habeas corpus to get them to ask the u.s. government to do something about it. two of us were not satisfied with the return that the british government came to the writ, but that's another story.thing they? the point is habeas corpus would undoubtedly have run detaining an aoe alien in british territory. these are the sorts of case in which magna carta is mentioned that more is value under pinning later laws. and this is the surviving rule of law in itself. but i'd like to end by telling you about one case which we have had in which magna carta might actually have made the difference.
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this concerns the sorry tale of diego garcia, the largest island in the archipelago in the indian ocean. in the 1960s, the united kingdom and the united states negotiated to make the islands available to the united states for a military base under diego garcia. for this point it was necessary both to receiver the islands on mauritius. who knows whether they would stay aligned with the western powers or become not aligned. and to remove the local population. by ordering council under the role of prerogative, the british government created a separate colony known as the british indian ocean territory.
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but in 1971, when the united states wanted to move in, the commissioner made an immigration ordinance which prohibited anyone from entering or remaining on the territory without a permit. and of course no permits were given to the indigenous population. this was part of a legal facade to deny there was any population on the islands for fear their obligations towards a nonself-governing territory under article 73 under the charter would be used to prevent the construction of the base on diego garcia. they moved out to mauritius and the seychelles with callous disregard. all of this is known and accepted by the british government. many years later one of the islanders, mr. banku, brought
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judicial review proceedings in england to quash the immigration ordinance on the ground that the commissioner's power to ledge slate for the peace, order, and good government of the territory did not include a power to expel all the inhabitants contrary to their best interests. in 2001, this claim succeeded. the orders were quashed. and the government at that time decided to accept this decision and investigate the feasibility of the island as returning to the outer islands. in 2004, however, the government decided that it would be impossible to promote or permit resettlement to take place. accordingly, they made a new constitution order and new immigration order prohibiting it. they didn't mention this is precipitated by a plan by some of the islanders and their supporters to stage landings on the islands, which receives a security threat to the diego garcia base. so mr. banku brought a new order
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to quash the new orders. and he succeeded in the high court, and the court of appeal but failed in the house of lords by a majority of 3-2. among the many arguments deployed on behalf of the islanders was one based on chapter 29 of magna car a ta. "no free man shall be exiled but for the lawful judgment of his peers or by the law of the land." hello. welcome to "newsline." i'm meek key yamamoto in tokyo. police in thailand have launched a manhunt to find those responsible for monday's deadly explosion in bangkok. they say a security camera caught images of a man at the site leaving a backpack and they say he spoke a foreign language that was not english. the bomb attack at the erawan shrine killed 20 people, including foreigners and wounded 125 others. police obtained an arrest


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