16

The UK is a common law country. It is a widely held belief of many people that statute Acts of parliament (i.e. most 'laws') only apply with the "consent of the governed"; and that one may be a "free man of the land" or a "Scottish Sovereign".

They assert that only common law applies to them, i.e. laws surrounding assault, threat or theft. Statutes such as the Road Traffic Act are seen as enacted by the private corporation of 'parliament'; and since they don't consent to being governed, these 'laws' don't apply to them, e.g. speeding.

Going one step further, free men and other groups of people state they have a right to travel under the Magna Carta, and since Blacks Law defines 'driving' as doing so commercially; they're entitled to drive ("travel") non-commercially without insurance.

Has such a defence ever held in court? If you look on YouTube you'll find plenty of people who believe it will.

  • 6
    I believe the general understanding is that "consent of the governed" is (1) a philosophical not legal theory, i.e. an explanation rather than limitation on government power; and (2) a collective not individual theory, i.e. the people as a community consent to governance. Individuals sometimes "opt out" as a practical economic or social matter, for instance by living as a hermit. "Freemen," to the extent they're interested in avoiding tax and criminal liability, are perhaps being unfair: they wish to enjoy the benefits of society, e.g. by using the roads, without the burdens. – Christian Conkle Jun 5 '15 at 17:23
  • I think the question of whether it ultimately holds in court is beside the point; the purpose (at least for US tax-deniers, although I see the question is UK) is to stonewall and delay the appeals process. – smci Jul 21 '15 at 6:16
10

I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed.

There are a couple of Freedom of Information requests to the government which state very clearly that it won't work:

https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed

The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer:

https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html

Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed.

Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court.

  • Parliament is elected. Government is a different thing - a government is formed by someone who the monarch considers "most able to command the confidence of parliament", who becomes PM. Parliament passes acts, government enacts statutory instruments and controls the use of the powers of the monarch. – bdsl Oct 12 '16 at 12:48
  • @bdsl statutory instruments and administrative control (i.e. administrative law/government) can only be exercised with the authority that parliament grants in its legislation or that it derives from common law precedent. – Dale M Mar 21 '17 at 0:21
8

No.

These theories are legally unrecognisable. The concept of governance by consent is misapplied, as is the 'private corporation' nonsense; almost all of Magna Carta has been repealed; Black's is not an instrument of law and does not bind the courts.

You may wish to consider the implications of discarding all statute law. The age of sexual consent, for example, is not defined in the common law: definitely not a desirable state of affairs.

  • 1
    I can't prove a negative, but I'd bet that no such argument has ever succeeded in any court in the world. – Flup May 27 '15 at 18:03
2

Common law, i.e. law made by judges in courts, has always been inferior to the dictations of the monarch and parliament. Courts do have some power of judicial review, but they may not usurp the authority that created them and pays the judge's paychecks.

Some quotes:

"The law of the land depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.... Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament." ~ William Blackstone (1760)

"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it." ~ Lee v Bude & Torrington Junction Rly Co (1871-U.K.)

"The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution." ~ Pickin v British Railways Board (1974 -U.K.) HL

  • 4
    Taking a slightly longer historical view, I don't think it is fair to say that this has always been true. This is acknowledged elsewhere in the Pickin vs BRB case you cite: "In earlier times many learned lawyers seemed to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete." Here is a quick history. – Dan Sep 2 '16 at 10:57

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.