As Brexit reminds us, there are some very strange wrinkles in the way we are governedby Tom Clark / April 5, 2019 / Leave a comment
The line of monarchs traces back to jostling Saxon kingdoms, before England was a thing, and a crowned head has sat at the constitution’s apex since, except when it was briefly knocked off its perch in the 17th century. Royal Assent for new laws has not been refused since 1708. By contrast, royal prerogatives to, for example, prorogue parliament and declare war retain bite. Though mostly discharged by ministers in the crown’s name, the ancient source of the power can have odd consequences. Repealing the Fixed-term Parliaments Act, for example, may not neatly restore the monarch’s traditional prerogative to call an election.
“Time immemorial” and the Common Law
The origins of English Common Law may be lost in the sands of time, but since a 1275 statute, England’s legal memory has been precisely defined as beginning on 6th July 1189, the start of Richard the Lionheart’s reign. Lawyers refer to anything earlier as “time immemorial” or “time out of mind.” Case law evolves, so this legal year zero doesn’t often crop up today. But in theory at least it could still do so—one way to secure a right of way, for example, might still be to argue it had applied “since time immemorial.”
Magna Carta is more celebrated than understood. Signed by King John in 1215, it was soon annulled, before being revised and reissued several times. It registered the principle that the king had to broker with others, albeit in ways that now baffle. But one clause about the City of London’s status remains in force. Another frames the ideal we now call due process and arguably jury trial: “No Freeman shall be taken or imprisoned… or any other wise destroyed… except by lawful judgment of his Peers.”
The Tudor “Acts of Supremacy” (Henry VIII’s in 1534 and then Elizabeth’s in 1558-9) started with Henry’s lusty dash for a divorce, but they became fundamental. The monarch was made “supreme head” of the Church, subjecting the Church of England to temporal authority. The established church was explicitly fitted under the auspices of…