Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.
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BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4’s legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.
How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.
Potter is proud of English law: “a boon we have given the world”. He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679, Bill of Rights 1689 – and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.
He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Mont Orgueil Castle in Jersey, a place for 17th century “extraordinary rendition”. There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.
In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment “is something we hope has been consigned to history”. The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.
Unfortunately, within days of Potter’s broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.