The Impact & Relevance of Magna Carta
In his dissenting opinion in Liversidge v. Anderson, Lord Atkin lamented that in this case he had "listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I." In this single statement Atkin was asserting that his fellow Law Lords, and the lawyers advocating on behalf of the Government in 1941, were putting themselves on a par with the Star Chamber of the 1600's, a time when court proceedings became increasingly a tool of an arbitrary monarch, so that the rule of law bore the hallmarks of secrecy, oppression, and retribution, shifting sharply away from the principles of Magna Carta.
Most of the provisions of the original Great Charter have, of course, been repealed or made moot through the passage of laws and societal changes over its 800 year history. In fact, only a handful of Magna Carta's original Chapters can be described as truly in effect today. Of those, most view Chapter 39 as having the most significance:
"No Free man shall be arrested, or imprisoned, or disseised (property taken), or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land." Chapter 39, Magna Carta.
Thus, from 1215 to today, thanks to Magna Carta, no King nor Queen would be above the law. And in Atkin's mind, this principle had a direct and an enduring applicability in 1941 to Churchill's War Cabinet in general, and more specifically to the Home Secretary, when in the Liversidge case the government steadfastly asserted that the Home Secretary (one man) wielded the exclusive and non-reviewable power to arrest and detain any British citizen under Regulation 18B.
In Atkin's view, even in the face of the advancing Nazi menace, there was no basis for his fellow judges to abandon what he described as one of their most basic "principles of liberty," which "on recent authority," he said, Britain was "now fighting."
Atkin said that it was "the judges," he and his fellow Law Lord peers, who must stand as that last line of defense, to be alert to strike down "any coercive action" against the liberty of the subject that was not firmly "justified in law."
And on this issue, on 3 November 1941, Atkin found that he stood alone.
Scott W. Wright