Tell us about the significance of the Magna Carta for us today – how important is it, not just symbolically but also practically as a first step in a process of legal development?

Magna Carta is hugely important for a number of reasons, but one of the reasons was that it set forth the principle that the deprivation of any person’s liberty had to be done in accordance with process and rules. That principle, which was articulated many centuries ago, is as important today as it was then, and it is as resonant and as alive today as it was then. There are issues right now, for example in relation to the detention of individuals at Guantánamo in Cuba, or the detention of foreign non-UK nationals in the United Kingdom because they can’t be deported back to their countries of origin because of fears of torture. What links the Magna Carta with Guantánamo, with the detention of foreigners in this country, is the same fundamental principle: what rules, what requirements have to be followed before you can detain an individual? Under what circumstances, if any, is it permissible to deprive a human person of his or her liberty, and Magna Carta reminds us that there is now an essential and fundamental principle that such deprivation can only take place in accordance with the rule of law, and the rule of law sets forth the conditions under which that can be done.

It seems to an outsider like myself that the Law today comes under particular stresses because of conflicts between different systems of law operating within single jurisdictions (national laws versus international treaties, etc.). Is this causing a real sea change in the way we think about law and fundamental rights?

I think you can follow a direct linear development from Magna Carta through to the instruments of the French Revolution, the United States constitution, the Atlantic Charter in 1941, the Universal Declaration of Human Rights in 1948, the European Convention on Human Rights in 1950, the Human Rights Act here in Britain in 1998 – all indicating at the core some basic fundamental principles that have emerged, and which say that the treatment of persons is subject to constraints. What’s interesting about this moment is that we are on the verge of recognising, or are recognising, in all countries and communities around the world, that there are basic and fundamental principles, but the difficulties that we have are in reaching agreement amongst those communities and countries as to how those principles are to be applied in different circumstances. And in the context of a globalising world what we see is that conflict between two different communities’ approaches to the circumstances - for example in which an individual can be deprived of his or her liberty - will differ. We see that, for example, in relation to the circumstances in which foreigners can be detained in the United States, and the circumstances in which foreigners can be detained in the United Kingdom. And so there is a conversation – and even a conflict – between two friendly, close, neighbouring countries, the United States and Britain. And it’s a conversation which is now carried out not just in philosophical tracts, not just in newspapers, but also in the courtroom. And so what happens in the House of Lords, and what happens in the United States Supreme Court in relation to arguments linking Magna Carta, the Atlantic Charter, the Covenant on Civil and Political Rights, is a global legal debate on the nature of fundamental rights, and how in particular fundamental rights are to be applied in different circumstances. And plainly different communities have different answers to the same questions, and that’s a debate that lawyers and judges amongst others, as well as politicians and all peoples, are now actively engaged in, and I think that’s what’s different. Whereas these discussions even 50 years ago took place essentially in the context of a village or a municipality or maybe a country, it’s now a global discussion. And I think that that’s the difference from 50 years ago.

Working on ICONS we’ve found one particular extension of this applies to the internet, which is a non-existent place in which everyone in the world is trying to impose their own laws, meaning that jurisdictions are impossible and confusing…

Well, we’re in a moment where jurisdictions are changing – I mean, it used to be the sense that the only jurisdiction that mattered was your local village, or your local municipality, or your country. That’s now completely changed, and there is a battle of jurisdictions, and underlying the battle of jurisdictions is a battle of ideas about essentially the relationship between the individual and the State. And that is now a global political religious cultural social debate – or battle, call it what you will. It is articulated around fundamental principles reflected in documents like the Magna Carta and the Universal Declaration on Human Rights. But that is interesting, and that is what’s happening right now, and essentially all that’s happened is that a local debate has become a global debate, and so people can write books about international rules because the rules adjudicate between competing views, and ultimately one view or one set of ideas will prevail, but we’re not in that position now. There’s a battle for ideas and interpretations.

Does this shifting make the argument for enshrining our national laws in a written constitution of some kind more compelling?

I’m not particularly wedded to the notion that countries need to have written constitutions in this sense; it’s not clear to me that striking the right balance between the powers of the State and the rights of individuals is necessarily safeguarded by a written constitution. The United States has a written constitution, and it turns out there have been rather a lot of abuses in the last three or four years; Britain doesn’t have a written constitution, and it turns out that foreigners have protections in this country that they wouldn’t have in the United States, so I don’t think there’s a direct connection between written constitutions and the safe-guarding of fundamental or individual rights. And I think that the issue which is perhaps more important is the nature of the relationship between a community or a country’s own laws and that country’s obligations under international treaties and conventions. And what’s been interesting in Britain is that courts, in particular, have been willing increasingly to look to international laws to fill out the content of domestic constitutional rights. That’s not a path that American courts, for example, are willing to go down. They are very uncomfortable reaching beyond domestic norms to international norms, and so I think the heart of the issue is not whether there is a written constitution or not, it is whether or not the local norms are informed, filled out, affected by norms which arise in another place, elsewhere, outside of the country. So putting it another way, to what extent are some of the fundamental principles set forth in the Magna Carta transformed by the Universal Declaration on Human Rights, the European Convention on Human Rights, and so on and so forth? And that can be argued in a number of different ways. It’s not self-evident what that relationship ought to be; but what that relationship is or could be is a matter of vital debate.