Magna Carta Public Lectures
University of Auckland
Friday 10 July 2015
Magna Carta - Visions for the Future
How does Magna Carta’s past inform our expectations
of the future? What challenges await?
Video 6 - Q&Ai
Stephen Winter: So we now come to our question period. Now, you can still tweet your questions
and Facebook, Lars over here is watching the electronic feeds as it were. Or you can do it the more
traditional way by raising your hands and we'll have some fellows coming through here with the
microphones. As we have only really about 12 minutes really please keep your questions short and
to the point. If it requires a book to give the questions perhaps you should just publish the book. And
remember to speak into the mic because it is being recorded for posterity. Alright? Oh, ok, so we go
to the Twitter feed right away. Chris, could you get him?
Question: So we have one question for Andrew Little. To what extent do you agree with Jeremy
Bentham's assertion in 'A General View of a Complete Code of Laws' that "All political power is
fiduciary" when considering how the courts could recommend to Parliament to reconsider
legislation?
Stephen Winter: Question, all political powers fiduciary?
Question: Yes.
Stephen Winter: Alright. So, what do you think about Bentham's position that all political power is
fiduciary in the context of?
Question: When considering how the courts could recommend to Parliament to reconsider
legislation.
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Andrew Little: I'm not sure. I think the. Sorry. Yeah, I know, I'll give my summary of Bentham
philosophy first and we'll all get home by midnight. Or in my case we won't get home at all. The
point about it is that the traditional role that the courts play is that because they deal with individual
cases they are very good at insuring that abuses of power misuses of authority are kept in check.
That is very difficult in a system where Parliament can pass laws and, not withstanding our New
Zealand Bill of Rights, that completely overrides it. And deprives citizens of the rights and
protections that we've said in our 1990 New Zealand Bill of Rights Act they're entitled to. And so this
is about, to the extent the way Parliament functions MPs don't, every MP doesn't deal in depth with
every piece of legislation. And there are a whole range of other considerations why things might slip
through the nets. We need another check and balance on it to make sure that, in the event that
Parliament does make, or pass a law, that abrogates citizens rights and freedoms, intentionally or
not, that there is somebody outside of Parliament who can kind of wave the flag and say "no, that's
a step too far. It doesn't justified limitation test. Go back and do it again. Do your homework." And
to some extent it is about creating a political crisis, if you like, Parliament has been told they've got it
wrong and they have to go back and do it again. And I think the dynamic that that unleashes will
improve lawmaking and stands us a better chance of insuring that every law that is passed that we
do a better job at insuring that citizens rights and freedoms are not traduced.
Stephen Winter: Thank you. Go down here in the front.
Question: Hello, for Chris Jones. You've shown how the Welsh, by their success in asymmetrical
warfare got the recognition that the question is not just the rule of law but who's law? But in the
Magna Carta case it's very much decided by territory I think. And we still think of laws going with
territory very much so that Magna Carta is called a colonial import or something because law's not
thought to go with people. If it's going to apply, those principles going to apply to New Zealand
where the markedly distinct populations are very much intermingled in large areas you have to have
a way of getting law that applies to persons. Does the Marcher law and its role in that have anything
to say about the New Zealand situation?
Chris Jones: Well, thank you for the question. I'm not sure that I would say it says anything directly. I
think you're absolutely right. It is a case in Magna Carta that the law, they are discussing law in
specific geographical areas. I think the Marcher law is actually a very interesting example. It's clearly
picked in Magna Carta because it's considered to be neutral ground between the English and the
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Welsh. The Marchers are a very odd lot. They don't recognise royal law. In fact there's a very famous
case of this. There is a king's messenger who arrives with a royal riot in the Matcher lands and the
Marcher lord's response to this is the make the messenger literally eat the riot and the wax seal.
Making the point, very simply, that royal law isn't valid in Marcher lands. And it's rather amorphous.
Marcher land does basically depend legally on particular Marcher laws. So there is perhaps
something there to think about. I don't think you can, I wouldn't sort of suggest you could
extrapolate and transfer principles from the Magna Carta in that sense directly to New Zealand. But
possible yes, there is something there in the case of the law of the March to consider. It's a rather
vague answer I'm afraid Michael. But, you know, it's something.
Stephen Winter: Shall we go in the middle there? The fellow in the wine sweatshirt.
Question: Mr Little my question relates to this idea of having a body that can judge Parliament.
Given our very small population how would we avoid the panel of judges, or however we label them,
being appointed politically so that, as Mr Obama can tell you who the Democrats are in the supreme
court, would you be able – best wishes - be able to point out the Labour members of that panel?
Andrew Little: I imagine a decision to declare a provision and a statute in contravention of our New
Zealand Bill of Rights to then cause it to go back to to Parliament would be a decision made by our
Supreme Court. I could guess at one or two of the member of our Supreme Court's political
affiliations. But it would be a guess. So I think we have a reasonably good process of appointment of
our judiciary. And we have other checks and balances, our Judicial Conduct Commissioner and all
those sorts of things. And I think there are moves at the moment to perhaps refine the process.
There is always a risk, and clearly we need to avoid it, of politicisation of that appointment process.
Consultation between political parties in Parliament before an appointment is made I think is useful.
And, as best as possible, a rational appointments process for the appointment of judges I think also
helps as well. But I think we've got a pretty good track record in terms of appointment of our judges
and the way they've conducted themselves in office.
Stephen Winter: Do you have a question? Edward can you pass him the microphone? Thank you.
Question: Good evening, ladies and gentlemen of the panel. I noticed that there had been no
mention of national sovereignty with respect to Parliamentary sovereignty. Because national
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sovereignty seems to be under treat from a number of different directions. Is there any connection
between Magna Carta and national sovereignty?
Andrew Little: I'll attempt the first answer. I think it's a question to all the panellists. Is there a
relationship between Magna Carta and national sovereignty? Magna Carta dealt with, it was an
attempt to restrain the King and provide, the start of providing some rights to, at that time, the
feudal land owners and later used to provide to citizens. So it was a content, it was a kind of a
document that created the content of rights. As to national sovereignty, important as it is
constitutionally I'm not sure the Magna Carta touched on that issue because it was inherent anyway.
The King was absolute and it was the King who was being restrained.
Chris Jones: Perhaps I can pick up on that. From a historians perspective the answer would be no.
Magna Carta predates the concept we would think of as sovereignty by about a hundred years. You
have to think of Magna Carta as effectively a group of very powerful families arguing with the King
who effectively represents a very powerful family. This is the terms in which people are thinking. The
idea of John as a King of England, this is certainly something that is on his seal, but he doesn't think
of a nation of England in terms that we would think of, that we could apply the concept of
sovereignty to. So John's world is a very different one from ours. He also sees himself as a Baron in
France where he has powerful interests. And he doesn't really draw a dividing line that we would
think of in terms of national sovereignty. So the historian's answer to that would be effectively no,
Magna Carta does not really have anything to say in 1215 about national sovereignty.
Question: Thank you. Leading on from that, I apologies first of all as someone who was here on
Monday night to Mr Newfield, that this question is going to be asked with no rigor and no honesty.
But I wonder, this is mostly for Dr Jones, but perhaps also for Mr Riley. I couldn't help being struck
when Dr Jones was talking about the Welsh clauses of the fact that I'd been watching the opening
session of the Ashes Cricket series the other night on Wednesday, which happens to be taking place
in Cardiff, and we were given the very awkward spectacle of having not two but three national
anthems being played. The Welsh, the Australian, and then of course the English/British. So, my
question is, whether given the current rather embarrassing conversation in Britain over nationalism,
national identity and devolution right now, certainly with Scotland, but also with Northern Ireland
and Wales and, indeed, with England itself, whether Magna Carta has anything to say to us about
these questions of devolution and identity today? Thank you.
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Stephen Winter: Patrick, that sounds like a question that calls for a diplomats touch.
Patrick Reilly: Well, thank you for that. And I'm glad you've been watching the Ashes. So have I. And
long may England's lead continue. On the issue about the debate in the UK, Britain is a multi-national
state. It is one of the few successful multi-national states in the world. And it's been successful or
many hundreds of years. And there’s always been a very rigorous and vigorous debate in the UK
about national identity. And I think it's a debate that we've managed to conduct properly. Certainly
in the Scottish case where we had a referendum last year. Not a window was broken in Scotland,
although the debate itself was rigorous. And there was a clear outcome that the Scot's people chose
by a health margin to stay within the UK. I think that debate will continue and it's part of politics.
And it should be done in a constitutional and civilised manner. Can I just pick up on a point that was
made earlier of the mention of Jeremy Bentham. Now, I don't know much about Jeremy Bentham,
but I think he was the man who coined the phrase "the greatest happiness for the greatest number"
as the basis of utilitarianism. Which has actually influenced public policy, certainly in the UK, but I
think worldwide, more than just about any other philosopher. So a shout out for Jeremy Bentham.
And, of course, he was British, so a double shout out.
Stephen Winter: Very good, good good. Alright, I’m afraid I must now bring our session now towards
a close. But before I do that, there are a number of people whose work in bringing this series
together deserves recognition. And I'm sorry I'm not going to be able to mention everybody by name
here who deserves to be mentioned. So bear with me for a moment, because, as many of you will
know, these events require and involve a lot of people. So firstly, I would like to thank Jennifer LeesMarshment and Edward Elder and the rest of our Magna Carta Commemorative Committee. We are
half way through the anniversary celebrations and we can give ourselves a well-deserved pat on the
back so far. Second, I'd like to thank those of the Faculty and the media productions team who've
helped in delivering these events. Not only have we had the assistance of many of our student
volunteers, the men in the red shirts and so on who are running around, I would also single out our
event coordinator, Ashley McGarry, who's managed the logistics for this operation seamlessly.
Where are you Ashley? Are you hiding? She's literally hiding. There she is. There, Ashley, well done.
Third, I'd like to thank all of the organizations who have sponsored speakers to attend sessions over
the week. I'm not going to have time to mention them all. I'll just say we've done this largely without
much in the way of a budget at all and have consequently replied upon contributions and good will.
And I should say that the good will that we've had from so many places has been remarkable. Thank
you very much. In particular, I'd like to single out the UK Magna Carta Trust, the British High
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Commission, who from the very get go were very enthusiastic in supporting us here, the Faculty of
Arts who have sponsored tonight’s refreshments which will be happening in a bit, and the display of
the two oldest known copies of Magna Carta in New Zealand. The display and refreshments will be in
the foyer to the left of the doors, is that right Ashley? Where's she gone again? Yes, out to the left
here the refreshments and the 16th century copies of Magna Carta are out there. I encourage you all
to take in what will likely be a unique opportunity. With respect to that display, I'd like to thank the
George Grey Collection of the Auckland Library for making their copy, their 1587 copy, available. And
I'd also like to recognise the work of Chris Jones, here on the panel, in getting the University of
Canterbury copy up here for tonight’s event and Tracey Thomas for organising, getting everything
together, the cabinet and all that, so, ok. So, in closing, it's been a pleasure and a privilege to help
bring this event together. And please join me, once again, in thanking our panel.
Chris Jones: Ladies and gentlemen, if I may, there is one more person to thank. And on behalf of the
Magna Carta 800 committee I'd like to thank Steve Winter who's done such a brilliant job.
i
Some of the discussion from the original video has not been transcribed.
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