Some businesses deemed ‘non-essential’ by the Government are refusing to shut, despite England being in lockdown until December 2. 

But is this legal?

Many businesses that have chosen to stay open and defy lockdown 2.0 have cited clause 61 of the Magna Carta, like this hair salon in West Yorkshire

When staying open many businesses have put signage on their shop fronts, like the one in West Yorkshire which states: 

Watford Observer:

The salon in Oakenshaw defies lockdown rules (Image - Newsquest).

“NOTICE: I DO NOT CONSENT. This business stands under the jurisdiction of common law. As the business owners, we are exercising our rights to earn a living.

“Under Article 61 of Magna Carta 1215 we have a right to enter into lawful dissent if we feel we are being governed unjustly. Contrary to common belief, our sovereign and her government are only there to govern us and not rule us.

“This must be done within the constraint of our common law and the freedoms asserted to us by such law. Nothing can become law in this country if it falls outside of this simple constraint.”

What is common law? 

Common law is based on legal precedents, it is established in courts rather than written in parliament. 

It influences the decision making process in unusual circumstances where written law and existing statutes cannot determine an outcome. 

The Magna Carta is a foundation of common law. 

What is the Magna Carta? 

The Magna Carta (‘Great Charter’) is a historical document that was signed by King John in 1215 stating that the sovereign would be subject to the same rule of law as ‘free men’. 

Not only that, but the Magna Carta underpins the foundation of individual rights in common law. 

Made up of 63 clauses, it was designed to provide a free church, reform law and justice and control the behaviour of royal officials. 

Why does it matter today?

The Magna Carta came before Parliament, the Declaration of independence, the U.S constitution and the U.S Bill of Rights. 

Since its conception, the Magna Carta’s more general clauses have held great importance to every generation who can see it as a means of protection - specifically common law and the decision making powers of the courts. 

What does clause 61 say? 

Clause 61 of the Magna Carta contained a commitment from King John that granted powers to 25 barons whose job it was to safeguard the Magna Carta. 

The barons were granted powers to  “assail” the monarch and “seek redress” in order to keep the provisions of the Magna Carta, but these powers were not granted to the population at large.

So, is it legal for ‘non-essential’ shops to stay open?

According to FullFact, the UK’s independent fact checking organisation, clause 61 of the Magna Carta is void. 

 “Within a year of being written, this clause [61] was removed from subsequent versions”.

Clause 61 was never incorporated into statutory law (written law that originated from the courts and constitution).

Only four of the original 63 clauses from the Magna Carta are still relevant today, according to the parliament website - clause 61 is not included.