800 years on can Magna Carta still disrupt the executive?

Abstract

In June 1215 King John put his seal to Magna Carta, which over the centuries has become an icon of English (British) liberties. Clause 40 about not selling, denying or delaying justice, and Clause 39, that no free man is to be imprisoned or dispossessed “save by the lawful judgment of his peers or by the law of the land” are still in force today. For these reasons 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”. In other words the executive can never be above the law, but for this principle to be enforced the state must disclose evidence by due process to the public by which it can be held to account. This essay explores the threats to openness of government in the digital age, which runs the risk of undermining this fundamental principle of the British constitution. These range from the intrusiveness of our surveillance society, ill-considered notions of a post-privacy world, misconceived concepts of open data to the immense difficulty of scrutinizing born-digital data released under due process for sensitive content. Such threats are balanced by a much more assertive judiciary under the supreme court, which like its American counterpart strikes down legislation, an unelected second chamber willing to challenge the executive and House of Commons select committees that are increasingly baring their teeth. This article is published as part of a collection entitled ‘IT as a utility’.