Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.
Category Archives: History
Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.
After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.
In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.
If it were implemented by the Government, Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.
The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.
One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament.
The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.
But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument.
The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.
Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.
One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50 notification. But were they, how can one say it, a little economical with the historicité?
Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:
“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.” Second day of case; digest here.
This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today. Read the rest of this entry
So what exactly is a baronet? We need to know to understand, in these class-sensitive times, following hard on “plebgate”, whether the appointment of Sir George Young, Bart, as the UK Government’s Chief Whip upsets the delicately crafted social balance of the British Cabinet. Is Sir George a bat’s squeak more posh or a smidgin more plebeian than Hampstead-born, Rugby and Cambridge-educated ex-Army officer and former Lazards banker Andrew Mitchell?
Young is well loved as the gentlemanly bicycling baronet, his copybook slightly blotted by his witty apothegm: “The homeless are what you step over when you come out of the opera” – often quoted out of context, as here. Those were more vulgar, more Thatcherite times. The Conservative party is now, of course, intensely relaxed about the filthy poor.
But back to the baronetcy. Behind it lies a shocking tale of snobbery and social climbing, naked patronage and the original cash for honours scandal.
So should Andrew Mitchell have been arrested and prosecuted for swearing at (or in the presence of) police outside No 10 Downing Street and allegedly calling them plebs?
Those who would love to see the stuck-up Tory toff (there, I’ve said it, and it’s on the record) doing time for his outbreak of incivility have had some difficulty finding any precedents for the offence of swearing at police officers. London Mayor, Boris Johnson, has certainly said they should be arrested, and one man is said to have been prosecuted for abusing police during the riots under Section 5 of the Public Order Act 1986 on “causing harassment, alarm and distress”.
But riots and the day-to-day hurly burly of a Cabinet minister’s life are two different things. As matters stand, the police are unlikely to arrest people who abuse them – however irritating the odious oik might be who is doing the abusing.
And this is as it should be. To arrest people who insult the police would be a draconian power, criminalizing most ordinary people who find encounters with the police stressful, whether after a hard day of trying to keep a faltering Government on its feet or because you are young, black and you’ve been stopped and searched for the Nth time this year.
Crucially it has generally been held that the police have pretty thick skins and aren’t going to be moved to strike a man who insults them (as in “conduct likely to breach the peace” – see “Blemishing the peace” below) or feel harassment, alarm and distress – even when insulted by a here today, gone tomorrow member of Cabinet who thinks the world should jump to his every order. After all, most police are likely to hear plenty of this sort of thing – not least in their own canteens.
The case to look at is Harvey v DPP (2011) in which Denzel Harvey was one of several men being searched for cannabis. “Mr Harvey objected and said, ‘Fuck this, man, I ain’t been smoking nothing’. PC Challis told him that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act 1986. PC Challis searched the appellant but found no drugs, whereupon the appellant said, ‘Told you, you won’t find fuck all’.” Other searches proceeded and names were taken, then the officer “asked the appellant if he had a middle name and the appellant replied, ‘No, I’ve already fucking told you so’. The officer arrested Mr Harvey for the offence under section 5.” He was convicted and fined £50. Read the rest of this entry
Does Julian Assange face the death penalty in the United States (if Britain extradites him there for his alleged crimes of publishing confidential documents on WikiLeaks)? The Ecuadorians have ejected him from their London embassy but only after guarantees from UK authorities that he wouldn’t be extradited to somewhere he could face “torture or the death penalty”. If he did face the death penalty in the US, Britain’s Extradition Act 2003 Section 94 would protect him from extradition.
The US does retain the death penalty specifically for treason, but it seems pretty certain that a treason prosecution, demanded by many in America, is not on the cards.
It is worth looking at the history of US treason law to see why. It started, of course, in England. The original Statute of Treasons of 1351 codified what was generally accepted as the common law definition of high treason:
“If a man compasses [plots] or imagines [proposes] the death of our lord the king, of our lady his consort [the king’s wife] or of their eldest son and heir; or if a man violates [has sex with, whether consensual or not] the king’s consort, the king’s eldest daughter being as yet unmarried or the consort of the king’s eldest son and heir; or if a man makes war against our said lord the king in the kingdom or is an adherent of enemies to our lord the king in the kingdom…”
Any of that constituted treason plus counterfeiting the “great seal” (impressed in wax on documents to indicate they had the monarch’s authority) and coinage or killing the “chancellor, treasurer or justices”.