Introduction
As August turns into September and children up and down the country return to school, I thought it might be interesting to consider a subject which put me in mind of my own school days. Whilst dealing with a Family Law Act application, a member of Chambers had to grapple with an unusual defence put forward by a litigant in person, Magna Carta. When offered the papers to consider I was intrigued to see the Great Charter referred to, and I thought back to what my old history teacher Mr Sharpe had attempted to drill into us one sunny morning. No doubt I had been looking out the window in eager anticipation of the epic sporting event that was the under 10’s cricket match that was to take place that afternoon. But as I sat in a lockdown-empty Chambers a few things kept running through my mind… Runnymeade? King John? Something about Barons?
Background
As any primary school history teacher will tell you, the document known as Magna Carta was signed by King John at Runnymeade in 1215 in an effort to appease his barons, who had taken up arms against him in open rebellion. In many ways it reflected the earlier Charter of Liberties from the reign of Henry I, but it went much further. In essence, it established limitations on the powers of the King and the accountability of the throne to its barons. However, before the end of 1215 King John (“Lackland”) had, not unsurprisingly, repudiated the charter.
With the accession of Henry III Magna Carta was resurrected several times, most importantly in 1225, as a concession to the barons in return for a war tax of £40,000. It was this version of the great charter, which was reissued in 1297 by Edward I, that remains in statute today, despite the vast majority having been repealed on the grounds of obsolescence.
Applicability of Magna Carta in 2021
4 clauses of the original 1215 document are still valid today, but only in as much as they are incorporated into 3 clauses of the 1225 version. References to these clauses will be references to the 1225 version, as adopted in 1297. The clauses still of relevance today are clauses 1, 9 and 29.
Clauses 1 and 9 refer to the Church and the City of London respectively and therefore I will not consider them further.
Clause 29 is the clause that is most frequently referred to in television documentaries, legal tomes and in defences from litigants in person with a penchant for history. It states,
“NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
At this stage we should consider what is meant by “freeman”. This word enjoyed a particular meaning in the 13th century and does not convey the universal sense that might be expected by a 21st century reader. The Magna Carta was an agreement between the King and his barons and did not confer any rights on serfs save for in three clauses, all of which have been repealed, and indeed are clear in their wording not to refer to a “freeman”. The inclusion therefore of this word in clause 29 is important and as such, in the strictest sense, clause 29 cannot be said to be granting rights to all citizens, which is potentially highly problematic in 2021. However, as seen below, the approach of the courts has been to extend the definition of “freeman”, giving it a universal applicability, which would no doubt have ruffled a few feathers back in the reign of Henry III!
Unsurprisingly, there are few judgements in which Magna Carta has been considered. However, I will now give brief consideration to two recent(ish) ones of note. Firstly, in The Mayor Commonalty and Citizens of London v Samede & Ors [2012] EWCA Civ 160 the Master of the Rolls gave the following observation:
‘He also says that his “Magna Carta rights” would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case.’
Also, in the Supreme Court case of Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 Lord Collins cited Chapter 39 (from Magna Carta 1215) as a one of a number of ‘fundamental rights’ in holding that the government had been in breach of duty in the exercise of its power of detention of foreign national prisoners pending their deportation. However, it appears that the Court referred to the incorrect version of Magna Carta and overlooked, or at least remained silent on, the linguistic limitations that derive from a 13th century document. By virtue of Magna Carta’s inclusion in its judgment, the court in effect extended the protection offered under the Charter to all people, be they “freemen”, women or foreign nationals.
In the matter to which I refer in my introduction the litigant in person respondent had sought to rely on Chapter 39 from King John’s 1215 incarnation of Magna Carta. This, as we have seen, was never in fact on the statute book and as such cannot be said to bring with it much weight. In any event, as made clear in The Mayor Commonalty and Citizens of London v Samede & Ors, the significance of Magna Carta in modern law is minimal, if it exists at all. It certainly is the starting point for what we would now call the rule of law, but it certainly does not provide a defence to allegations of domestic violence in Non-Molestation Orders, as one litigant in person found out to his cost.
While the team at Becket Chambers do not routinely deal with legal issues arising from 13th century domestic politics, we are able to represent clients in all family law matters. For any enquiries please do not hesitate to contact out clerks at clerks@becket-chambers.co.uk.
