Can Magna Carta and “common law” give you immunity from Covid regulations? | thesecretbarrister | 28 Nov 2020
Common to these cases is a belief expressed by the individuals that they were not bound by the snappily-titled Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020, as made by the Secretary of State exercising the powers conferred by sections 45C(1), (3)(c), (4)(b), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.
It’s because, they say, of Magna Carta, and of something called “common law”. This theory has gone viral in certain corners of social media, with perhaps the most popular template of the legal argument being this:
This document has apparently been posted in the windows of pubs, salons and other businesses by owners believing it to confer immunity from the regulations requiring them to close their businesses for 4 weeks. Unfortunately, as the proliferation of punitive financial penalties demonstrates, no such immunity exists.
And that’s because this document – and the assertions of law that it contains – is pure nonsense. It is a species of what regular attendees at courts will recognise as the pseudo-legal rubbish peddled by self-styled “Freemen on The Land”, a grouping of proselytising individuals who believe that by misquoting Magna Carta and basic tenets of contract law, they can somehow place themselves outside the jurisdiction of the law of England & Wales. By making various incoherent and illogical assertions cloaked in legalese, they profess to be bound by “other” laws, such as the laws of the sea or long-repealed mediaeval treaties, and claim that the legal system has no control over them.
Many adherents are harmless enough; they rock up to the magistrates’ courts armed with their scripts and pseudo-legal babble and are duly and properly convicted, with court time wasted but the enterprise otherwise victimless. But on an organisational level, there is the risk of very real harm, with “gurus” seeking to part the scared and unwary from their money in return for the secrets to legal omnipotence. Furthermore, when this empty doctrine escapes the conspiracist echo chamber and enters the social media feeds of people who trust and act upon it, we see desperate people facing financial ruin.
The phenomenon is by no means unique to this country; there is an international dimension to this fraud. In Canada in 2012, a judgment of the Court of Queen’s Bench of Alberta in the case of Meads v Meads painstakingly and comprehensively dismantled the legal shibboleths of these various linked movements (referred to by the judge as “Organised Pseudolegal Commercial Argument litigants”, or “OPCA”, due to a common thread of the groups’ arguments being that in order to be bound by the law, you have to explicitly agree to it, akin to entering a commercial contract).
And while there is a risk that by engaging and explicitly debunking the falsehoods we risk conferring upon them an unearned legitimacy as a credible “alternative” school of legal thought, I think that given the prevalence of this rubbish, and the very real harm that it is doing to innocent people, we lawyers have a responsibility to put the truth into the public domain.
So let’s look at the document above, and break down, line by line, what the law actually says.
“I do not consent.”
Consent is a recurring theme in OPCA arguments. But it is meaningless. While your consent is required to enter into a legally-enforceable contractual agreement with another person or organisation, there is no principle of English & Welsh law that you are required to consent before being bound by the laws made by Parliament. The principle underpinning our constitution is that Parliament is sovereign, and can make or unmake any law it wishes (see, among other sources, the Bill of Rights 1688/9, the Act of Settlement 1701, the Claim of Right Act 1689 (Scotland), the Acts of Union of 1706 and 1707.) It would rather defeat the point if Parliament could be thwarted simply by individuals declaring that they do not “consent”. And you can’t.
“This business stands under the jurisdiction of common law.”
It certainly does. As do we all. Common law is the incremental development of the law by the higher courts; it fills the gaps between legislation made by Parliament. Parliament is sovereign, meaning that legislation enacted by Parliament takes precedence over previous court decisions (common law), and courts are required to interpret existing common law principles consistently with legislation. But – and this is the key point – we are all bound by both sources of law. You cannot elect to live under the jurisdiction of only one or the other. It’s a nonsense. “Common law” is cited by OPCA groups as if it has some special indestructible quality, but it doesn’t. It is an important source of law, for sure, but it cannot override primary legislation, and, once a principle of common law has been superseded by statute or by a development in the common law, it can’t be revived by somebody saying, “I still consider myself bound by the old common law”. To give an example, it used to be an understood common law principle that a man could not, as a matter of law, be guilty of raping his wife. This changed in 1992, when the House of Lords (the predecessor of our Supreme Court) clarified that a man could in fact be convicted of raping his wife. A man could not today run a defence to rape asserting that he was bound by the old common law.
“As the business owners, we are exercising our rights to earn a living”.
There is, I’m afraid, no absolute legal right to earn a living that overrides your obligation to obey the criminal law. There’s no such right provided by statute, either domestic or international, nor under common law. The EU Charter of Fundamental Rights provides a freedom to choose an occupation and a right to work, but the UK famously secured an opt-out of the Charter when a member of the EU, and is no longer bound at all post-Brexit.
“Under article 61 of Magna Carta 1215, we have a right to enter into lawful dissent if we feel we are being governed unjustly”.
No you don’t. Chapter (not ‘article’) 61 of Magna Carta 1215 provided:
SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:
The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.
If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.
Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.
If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.
In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.
The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.
We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.
There is no mention of “lawful dissent”, but King John did agree that the 25 barons to whom this agreement applied could “distrain upon and assail” the monarch “in every way possible” if the monarch or his servants offended or transgressed this agreement. However, the first point here is that this right was only granted to those 25 barons and people who had sworn an oath to follow the commands of those barons, not to the population at large. And secondly, and fatally for this argument, Magna Carta 1215 was declared void by the Pope within a year. It was reissued several times, in various forms, but Chapter 61 was never revived. Indeed, out of the 63 chapters that appeared in the 1215 Magna Carta, only four are still in force today, the remainder having been repealed over the centuries.
So in short, Chapter 61 no longer exists, and even when it did, it didn’t give a general right to dissent or rebellion.
“Contrary to common belief, our sovereign and her government are only there to govern us and not rule us. This must be done within the constraint of our common law and the freedoms asserted to us by such law. Nothing can become law in this country if it falls outside of this simple constraint”.
Again (and I am running out of different ways to word this), the fundamental principle underpinning our constitution is that the Queen in Parliament is sovereign, and can make or unmake any law she likes. Attempting to draw a semantic distinction between “govern” and “rule” does not get around the fact that laws, lawfully made, are binding on those to whom they apply – i.e. all of us. As above, sovereignty means that Parliament can legislate to completely overturn the common law. No common law principles have immunity in this respect. This paragraph completely misstates how our legal system works.
“I am not under any obligation, nor will I, answer any questions or give you any details”.
It is not stated at whom this declaration is directed, but yes, you are generally under no obligation to answer questions or provide details to anybody. However, there are exceptions. If, for instance, a police officer reasonably suspects that you have committed or are committing a criminal offence – say, breaching the Covid regulations – and is unable to ascertain your name by asking you, they would be entitled to arrest you under section 24(5)(a) of the Police and Criminal Evidence Act 1984 in order to establish your details.
“ I am a living person and statutory regulations only apply with my consent”.
This is another common rhetorical device deployed by OPCA litigants, and it is meaningless. We all, from the moment of birth, have a legal personality. You can’t opt out of it by declaring yourself a “living person”, or a “natural person”, or a freeman-on-the-land, or by claiming (as is common with Freemen-on-The-Land) that “I’m not John Smith, I’m John of the Smith Family! And you have no legal power over him!”. None of these devices has any legal meaning or effect. And as we’ve seen above, the idea of consent being required before statutory regulations apply is chaff.
“I will conditionally accept your demands on proof of the following…If I do not receive the evidence as requested, I will thereby take your silence as your assent and agreement.”
What follows is a list of supposed terms, requesting that the reader of the notice supply various specified “evidence”. None of these has any legal effect. Contract – and this is pretty basic undergraduate stuff – requires offer, acceptance and consideration (“quid pro quo”). You can’t enter a contract with someone by sticking up a poster of demands and saying, to the world at large, “I’ll take silence as your agreement”. This isn’t a Twitter spat. But, as above, even if you were somehow to enter a legally-binding contract with, say, an individual police officer or local government official, this would not have any effect on whether the law applies to you, or what powers the state has available to it. If the police reasonably suspect that you are breaking the law, they have a host of enforcement powers available, none of which are conditional on them obtaining your consent or complying with a list of demands that you’ve blu-tacked to your window.