It always bothers me when I discover that I, a chemist with no legal training whatsoever, know more about the law than the people whose job it theoretically is to make it.
Thursday night’s Adjournment Debate in the Commons concerned possible amendments to the regal succession rules, specifically ending the current bias towards male children and the ban on marrying Roman Catholics. I doubt that there are many people who think either of these a bad idea, but the Minister whose job it was to reply gave the standard response that they always use: It would involve amending half a dozen fairly entrenched laws, most significantly the Act of Settlement 1701, and that in order to avoid a split in the crowns, they would need to be passed simultaneously not just in the UK but also in Canada, Australia, New Zealand, and ten or so other places.
Personally, I don’t see the problem with splitting the crowns: the Monarchy in Australia isn’t going to long outlast Lizzie anyway, and it wouldn’t surprise me if most of the others follow suit.. But that’s not what this rant is about. What it’s about is that, in the middle of the debate, MP Chris Bryant said (quoting from Hansard, and referring to the Coalition Government’s plans to introduce elections for the Second Chamber):
Chris Bryant: As I said, posh tosh. The Minister is going to cite arguments that the civil servants around the corner will have prepared for him about how awfully difficult this is and how many pieces of legislation are involved, but if he is going to reform the House of Lords he is going to have to start with Magna Carta, and that is going considerably further back than the Act of Settlement.
With all due respect to the Honourable Gentleman: No. Just … No. What I tell you three times is true: No. Reform of the House of Lords will not require any amendment to Magna Carta whatsoever, because virtually none of Magna Carta is actually still legally in effect.
Now, perhaps the first problem is that when a Lawyer says “Magna Carta” they’re not referring to the same document everyone else is. Most people, on hearing those words, think immediately of the document forced on King John by a gaggle of rebellious barons and ecclesiastics at Runnymede in June 1215. However, as important and iconic as that moment was in the development of English law, that version of the charter did not outlast the year. In fact, John was willfully disregarding it within three months, and any legal effect it had ceased entirely when he died in 1216, leaving his nine-year-old son Henry III as his heir.
Luckily, about half of the original Magna Carta dealt with specific grievances the barons had against John that were simply no longer relevant once he was no longer around. When Henry III emerged from the care of the regency council in 1225, he voluntarily issued a revised version of the charter, omitting the sections that were no longer relevant (it shrank from 61 clauses to 37) and rewording some of the others. When Edward Longshanks succeeded Henry in 1272, he confirmed the 1225 text, and in 1297 had Parliament permanently enact it in to law as part of a statute called Confirmatio Cartorum. It is this law, containing the shorter 1225 text rather than the original 1215 version, that the few remaining effective provisions of the Charter hail from.
However, like I said, there aren’t many. Important as the Charter is, most of it was actually rather vaguely worded and was superseded over the years by other laws that stated the same things in more concrete terms; and by the accession of Victoria it was effectively obsolete. Two-thirds of it was repealed during the 1860’s, and all but three of the remaining clauses followed suit in 1969. The three remaining clauses read (in translation):
- I. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.
- IX. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.
- XXIX. 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
So, the only things that are still guaranteed by Magna Carta are: The freedom of the Church, the ancient Liberties of the City of London and the Cinque Ports, and due process of law. Nothing in there about the composition of Parliament whatsoever.
Honestly, what do we pay these people for?