Magna Carta – is it such a great charter?

The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.

   In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.

   The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?

   In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.

   Magna Carta, a long list of promises extracted from John, was basically intended to prevent his overstepping his traditional powers at the expense of the barons, the next people down in the feudal pecking order, as he and predecessors had been doing for some time. It was not a radical forward-looking or proto-democratic document, as it has often been regarded, and nor does it have any direct contemporary relevance, although it is often referred to when people have concerns about modern attacks on British people’s freedoms. It was, in fact, one of those occasions where reformers looked backwards to some notion of “English freedoms” or the allegedly benign “laws of Edward the Confessor” (John had previously committed himself to uphold the Laga Edwardi) and mingled this sentiment with the long-standing feudal contract between the king and his vassals. It is unlikely that by 1215, when the charter was signed at Runnymede meadow, near Windsor, anyone actually knew what the laws of Edward were. They were, and remained for centuries to come, a totem for backward looking radicals to hang their own ideas from and to organise their demands, giving them a historic authority that wholly new ideas would not have.

   Only a very few of the charter’s provisions remain in place. The remaining bits are from the 1297 version: chapter 1 gives freedom to the Church; chapter 9, allows London to “enjoy its ancient liberties”, which it perhaps continues to do in some matters; and the monarch/state still cannot imprison people or strip them of rights and possessions unlawfully, as set out in chapter 29 (originally 39) of the charter. It is not a source of practical constitutional law as such.

  The right not to be unlawfully imprisoned was accessed separately from Magna Carta by habeas corpus (“that you have the body”), one of the legal writs (or standard procedures) that could not be denied to a petitioner and could be used to bring someone into court even if they were in prison. It was recognised well before Magna Carta, possibly in Anglo-Saxon times, but its protective powers were not fully established until the 17th century in the Habeas Corpus Act of 1679 – though, of course, it is much abused even in these enlightened days (See: The strange case of habeas corpus). 

Chapter 39 analysed

Here is a modernised version of Chapter 29/39 of Magna Carta (Note: the “chapters” are merely paragraphs, each on a single issue), the most significant part:

“No freeman shall be captured or imprisoned or disseised (of any free tenement or liberties or free customs) or outlawed or exiled or in any way destroyed, nor will we [ie the king] go against him or send against him except by lawful judgment of his peers or by the law of the land.”

   The word freeman has a specific, restricted meaning. It is not the same as a “free man” as it is sometimes translated. A freeman was a man with a particular form of property-holding which entailed certain rights but also obligations to the Crown. Freedom was not then what we understand it to be now – the right of an individual to do more or less as he or she wishes. Freedom was a privileged status based on property for a certain class of people holding those property rights. Ultimately that privilege derived from the Crown – it was one of the powers of the monarch to grant it. “Freedoms” are really privileges limited to small classes or individuals.

   Similarly a “liberty” was an often very limited right or set of rights granted to people or corporations (people bound together in a single body – “corpus” being Latin for body). It was, according to one historian “only one stage removed from the obligations of tenure or the servitude of apprenticeship”. [Ogg, 1955] On this definition people do not start with liberty; they are given “liberties”, and the source of those liberties is the Crown. Those rights may have been held since time immemorial or granted by the monarch of the day, but they were “held of the Crown”, the ultimate owner of all property and hence all property rights.

   Liberties gave certain people rights “beyond the ordinary subject” [The Law Dictionary, G Jacob 1729]. It was these unusual rights that concerned the framers of Magna Carta, as we can see in the word “disseised”. This is sometimes mistakenly translated as “seized”, as if it meant unlawfully arrested. In fact it means “to deprive of seisin”, and seisin is a form of feudal freehold property holding – ownership of a sort but with obligations and limitations. The words in brackets were added in the second reissue of the charter and break down the rights that the freeman should not be disseised of. Free tenement literally means “free holding” of property, liberties and free customs are other wider rights granted by the monarch (perhaps in the dim and distant past) to pursue certain profitable activities.

   Nowadays we tend to believe any individual may pursue any profitable enterprise they wish but in medieval times the right to pursue particular professions was limited to certain classes of people or corporations. If you were a freeman you could legally exclude others from involvement in the sort of work you did or goods you sold unless they had the same privileges. Thus Magna Carta was intended to uphold the rights of monopolists to carry on their privileged business, not to offer freedom, as we understand it, to the general public.

  The outlawing and exiling and even “destroying” referred to in Chapter 39 were the punishments faced by landowning aristocrats if they rose up in rebellion against the king. Outlawry was a loss of legal rights and protections including the right to make legal claims in court. The word “destroyed” has been taken to cover killing or torture but in the context seems rather to mean the “destruction” of a person by removal of his property and legal rights. 

Protecting the status quo

Magna Carta, then, is very much a document addressing the interests of the landowning classes. It requires that the king should respect longstanding feudal property rights and not simply take back property arbitrarily. It has nothing to say to us about modern property rights and hence is not a patch on Protocol 1, Article 1 of the European Convention of Human Rights:

“Every natural or legal person [ie all individuals and entities such as companies – ie not just privileged 'freemen'] is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

   Magna Carta therefore required the king to respect the status quo, the complex web of tenures that existed at that moment, and not to take property back on the basis of his ultimate ownership of all property. What is significant about Magna Carta is a principle that can be seen as underlying it – that there was a contractual relationship between the monarch and the people. The people (those with “freedoms” and “liberties” – not the rest) thereby had a right to insist on monarchs’ performance of the contract – even to the point of resorting to force of arms against the monarchs if they failed to fulfil their obligations or overstepped their authority. Remarkably the first 1215 version of Magna Carta states this right to rebel explicitly in chapter 61. The barons:

“may distrain upon [seize property] and assail [attack] us [ie the king] in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.”

   Probably David Cameron’s copy of Magna Carta does not contain this part, in effect a right to rebel against the monarch (and by extension, his or her Government) by force of arms. Chapter 61 was not republished after the first version of the charter. Although legalising rebellion, the chapter can be seen as an early assertion of “the rule of law”, meaning the “rule” that the monarch (or the Government) is subject to the law and cannot defy it or overturn it arbitrarily. Its sanction, a rebellion of the people, can also be seen as justification of extreme measures against the government – as it was when American colonialists, subject to the British Crown, drew on Magna Carta and deemed the Crown “no longer fitted to be the ruler of a free people” and thus set course on a rebellion that led to independence. The right of rebellion, again, was not new but a right inherent in the feudal system. This meant that the idea of treason, as we know it today, was not part of the feudal system, but was something rather oppressive introduced at a later stage.

   Chapter 61 also puts in place a council of 25 barons, elected by other barons, to ensure the king adheres to the provisions of the charter. This is sometimes seen as proto-democratic but is far from that since it shifts power from the king directly to barons, in other words to a particular class interest with no constitutional restrictions on it and owing no representative duties to the population at large. In chapters 12 and 14 there was provision for the formation of a Great Council of barons and the bishops (an early version of the House of Lords, Britain’s second, revising chamber in the legislature) to gain consent whenever “aids” are sought by the monarch, in other words when he or she wishes to levy taxes, usually for war. These provisions, although once more related solely to feudal matters, have been seen as an early assertion that there should be no taxation without consent – specifically in modern terms, consent by a representative Parliament (hence the slogan of the American revolutionaries: “No taxation without representation”, since the colonists were not represented in the British Parliament).  Note, though, that the barons literally represented only themselves, since they could all sit in the Great Council.

Rallying cry

Despite the charter’s reassertion of feudal rights and (if one is to accept it at face value) an inchoate mix of other and earlier rights, political feudalism continued to wither away and was dead by the end of the 13th century. Monarchs nevertheless were made to swear to uphold the charter’s provisions almost as a matter of course, even where those provisions were no longer of practical importance.

    King John himself fully intended to repudiate Magna Carta and did so almost immediately. But it proved at least a psychological barrier and a rallying cry against the absolutist tendencies of the monarchy. The idea of limited monarchy begins to form, developing into the idea that the monarchy is an office, a role with a job to do for England and its people rather than simply the ultimate, irresponsible owner of everything in the kingdom. So there is something worth knowing about Magna Carta – but far from being a true source of British freedoms, it is actually more important as an idea, a piece of propaganda to support the interests of the landed against the monarch through to the 17th Century Civil Wars and beyond (including in the War of American Independence) – not as a foundation stone of democracy.

   It is now being drawn upon, along with the “Common Law”, by less radical forces, in the battle against another authority – the European Court of Human Rights. Magna Carta is waved around by Conservatives and conservative interests who pretend these “British rights” (in reality wholly English) are all we need for our defence against modern oppressions. That is why Cameron is so interested in fusty old documents he has never read rather than the ECHR’s living law – which he really ought to read. 

Twitter: alrich0660 

Note: Here is a version of the original 1215 charter with Chapter 39 (now 29) and the suppressed Chapter 61: Magna Carta  

Here is piece about that other great “constitutional” document regarded by Conservatives as one of the vital foundations of British Freedoms, the 1689 Bill of Rights: Holy Alliance to Capture the British Constitution

And here is a piece on what the Conservatives want to replace the Human Rights Act with: The Conservative Bill of Rights: The State v The People 

David Allen Green debunks the legal pretensions of Magna Carta in this FT piece (free registration required): The Myth of Magna Carta 

 

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Barkas case: Judicial anarchy on the village green

Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.

  The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.

   There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Lord Justices did so anyway.

   Further, they put themselves in the bizarrely contorted position of relying on obiter dicta in Beresford (remarks by the judges in that case that are not supposed to be binding) for their own judgment in Barkas while overruling the substantive judgment in Beresford – which is supposed to be binding. We seem to have entered an era of judicial anarchy.

 

Barkas – facts and legal issue

The case hinges on the ambit of the 2006 Commons Act s. 15, which allows local people to apply for a piece of land to be designated a village green if it has been used “as of right” for lawful leisure purposes for 20 years or more. Designation gives powerful protections against new development on the land and is being used by campaigners to this end.

   Helredale field, Whitby, was part of a 14 hectare parcel of land bought for housing in 1951. The housing was built and the council “laid out and maintained the Field as ‘recreation grounds’ pursuant to [what is now Section 12(1)(b) of the 1985 Housing Act: see materials below]”. This act allows a local authority to “provide and maintain in connection with housing accommodation provided by them under this Part … recreation grounds”.

   The council did so, marking out a football field, mowing grass and maintaining a path. It intended the field for use by those living in the flats – but others used it too, with no attempt by the council to bar them by gates or otherwise.

   To make a claim under Section 15 those others (ie not the estate residents) would have had to have been using the land “as of right” but not with specific permission, thus: “nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner” – precario meaning a permission that can be easily withdrawn.

   Lord Neuberger, President of the Supreme Court, defined the words “as of right” as

somewhat counterintuitively, almost the converse of ‘of right’ or ‘by right’. Thus, if a person uses privately owned land ‘of right’ or ‘by right’, the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is ‘as of right’, it is without the permission of the landowner, and therefore is not ‘of right’ or ‘by right’, but is actually carried on as if it were by right – hence ‘as of right’. The significance of the little word ‘as’ is therefore crucial, and renders the expression ‘as of right’ effectively the antithesis of ‘of right’ or ‘by right’.”

 

   So the Supreme Court in Barkas decided that there was, in effect, a licence for people in general (not just those in the nearby flats) to use the land. It had been established in 1948 by Denning J (HE Green and Sons v Minister of Health (No 2)) that under the equivalent Act of that time (regarding the buying of land by local authorities) “the use could also validly extend to other members of the public”. It followed that those using the field, although it was not provided for them, were using it “of right” ie by right not as if by right, with no actual permission. They were not trespassers so no rights under the Commons Act were gained after 20 years to claim the field as a village green.

   Neuberger’s logic is faultless once he has established the definition of “as of right”. He notes:

In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user [ie making us of it] ‘as of right’ can arise.”

 

Beresford v Sunderland
The “of right” and “as of right” distinction is not new and was fully examined in
Beresford – though with a rather different definition applied to the words “as of right”. Additionally, the facts of the case in Beresford were also different from those in Barkas – such that the Court of Appeal and the Supreme Court were able to distinguish Barkas (ie declared it should have a different outcome because of its different facts) – which is generally how courts should treat precedents if they wish to depart from them. Neuberger accepted as much: “The facts of the present case are very different” he said (para 46) and added: “I am clearly of the view, therefore, that Beresford can, and ought to, be distinguished” – just as the Court of Appeal had done earlier.

   Indeed the obiter (non-binding) comments in Beresford fortuitously fitted the bill regarding the the different facts of Barkas rather neatly, which is why Neuberger and Co adopted them – and which they had a perfect right to do while leaving the substantive judgment in Beresford alone.

 

The facts and issues in Beresford
The owners (various public bodies) in
Beresford had laid grass on a piece of land in 1975 since when it was informally used for leisure; the owners mowed it, put in benches and laid a cricket wicket. Users of the land made a claim for village green status arguing it had been used for “lawful recreation” for at least 20 years (the “prescription” period at the time and adopted by the later Commons Act) but Sunderland council said there had always been an implied licence for people to do that. Such a licence should be implied from the owners’ providing seating and mowing the grass to make it amenable for recreation. People were using it by right, not as of right.

   The judges in the House of Lords disagreed. The land in the Beresford case was bought under wider powers than the 1985 Housing Act – instead under the New Towns Act 1965. “The Washington Development Corporation did not acquire this particular area of land for any specific purpose, and was not under an obligation to appropriate it for any specific purpose,” said Lord Walker (at para 89). There were proposals for a sports centre but meanwhile use of the land was tolerated but not “enjoyed by any overt licence”. In the 1990s Sunderland council gained the land with a view to development. “In short there is no evidence of any formal appropriation of the land as recreational open space by the city council or its predecessors,” said Walker (para 90). Unlike in Barkas.

   Walker argues that use can be tolerated and not adverse to the owner’s interests (ie the user isn’t necessarily a trespasser) yet not actually be licensed. He was describing a legal paradox – usually trespass is adverse to the owner but in cases like this the user would not be looking over his or her shoulder worrying about an owner seeking to turf him off the land or waving a writ at him. This is a different definition of “as of right” from Neuberger’s simplistic version. Walker understood it was a paradox but intended it to exist conceptually as such and hence to exist in law. “As of right” meant as a trespasser who did not consider himself a trespasser nor was considered as such by the owner – yet at the same time did not have either implied or overt permission to use the land.

   Lord Bingham, in his Beresford judgment, agreed, saying a licence (“precario”) could not be implied simply by the council having mown its own land or put in benches as a service to council tax payers. He said:

If the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self-same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council’s licence.”

 

 This is complicated. Basically Bingham is saying that if the land had already become a village green, one might expect the council to mow it; so if it is not yet a village green, mowing it cannot be interpreted as suggesting the people were potentially trespassers but for an implied licence to use the land.

   The locals were simply using the land as a village green even though it wasn’t one officially; and the council was simply providing a service to those people, not asserting a legal right to exclude them at some later point. The relevant statutes did not confer a right on the locals to use the land for recreation – so it follows they were doing it “as of right” – as if they had the right but with no legal authority.

 

Sullivan’s view (Barkas in the Court of Appeal)
The Court of Appeal cannot overrule a case like Beresford since it was heard by the higher court, the House of Lords as was (now UK Supreme Court). But it was able to reject Christine Barkas’s claim by distinguishing
Beresford. Lord Justice Sullivan at the Court of Appeal said Beresford was authority for the following propositions:

(a) That there is a distinction between a use of land “by right” and a use of land “as of right”. [Neuberger would agree, though not on the definition.]

(b) That if a statute properly construed confers a right on the public to use land for recreational purposes their use of that land will be by right and not as of right. [Neuberger would agree.]

(c) That section 10 of the 1906 [Open Spaces] Act [see materials below] is an example … of land which is provided by a local authority as open space which the public use for recreational purposes by right.

 

    The argument in Beresford was that the land was not held by virtue of the 1906 Act so there was no requirement for it to be held on trust for leisure activities – so people using it that way were doing so “as of right” not “of right”. As Douglas Edwards QC for the claimant in Barkas put it in the Court of Appeal: “The public would have ‘an expectation that they were entitled’ to use the land for recreational purposes, and the local authority would expect members of the public to use the land for such purposes. However, these reciprocal ‘expectations’ would not be sufficient to defeat a claim that the use of the land by the public for lawful sports and pastimes was as of right and not by right”. Expectation, it is argued, does not amount to permission or licence – Walker and Bingham’s paradoxical point exactly.

   Sullivan noted that he was bound by Beresford but added that “my understanding of the decision is that it turned very much upon the particular facts in that case, and the House of Lords deliberately left open the wider question: when will user [ie use] by the inhabitants of a locality be pursuant to a statutory right to do so and not as of right?” That was the obiter point – which Sullivan adopted, finding against Christine Barkas while distinguishing Beresford and hence leaving it standing.

   The Helredale land had been bought originally for housing and was now wanted for more housing. It was in effect “appropriated for the purpose of public recreation” (unlike the Beresford land) because it was turned over to recreation under the Housing Act 1985 s. 12 after official application to the Secretary of State. People using it for that purpose were therefore using it with permission, by right, not as of right.

   This is in contrast to Beresford, which allows for the possibility that a person using land may not be a trespasser but may not either be using it by right (as a licensee). It suggests that mowing lawns and putting benches up may be an encouragement to use (albeit post hoc) but not a permission for use.

 

Neuberger and Carnwath view on Barkas (Supreme Court)
On
Barkas, Lord Neuberger’s position is straightforward and follows the logic of the obiter comments in Beresford:

So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise.”

 

    To that extent he accepts Barkas can be distinguished from Beresford. He should have stopped there, having fulfilled his duties and rejected the Whitby campaigners’ case and having turned the Beresford obiter comments into firm and binding law. But he decided instead that Beresford should be trashed.

   In part he does this by exposing the flaws in one of the Beresford judgments, that of Lord Scott, saying paragraphs 44-50 should not be relied on. He is right. They are confused, to say the least. But he then goes on to associate the other judges in the case with Scott’s confused reasoning, saying: “I suppose it could be argued that Lord Scott’s opinion represented the view of all five Law Lords.” He is wrong. Most gave their own judgments along the lines of Walker and Bingham.

   Neuberger concludes by agreeing with Lord Carnwath’s assessment of Beresford. Carnwath dismisses the whole set of judgments in Beresford, (except the crucial obiter point) declaring: “I would not only dismiss the present appeal [Barkas], but I would hold that the decision and reasoning of the House of Lords in Beresford should no longer be relied on.” Like Neuberger, Carnwath takes the view that “The ‘as of right’/‘by right’ dichotomy is attractively simple”, ignoring the complexity of the deliberately paradoxical definition set out by Walker and Bingham.

   Instead he asserts: “Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to ‘warn off’ the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights.” It is an assertion rather than a subtly argued refutation of the Walker/Bingham view. It says, in effect: “I don’t like what their Lordships said and shall simply say the opposite and ignore the fact that they have precedence.”

   He sets out the Beresford reasoning of Smith J in the High Court in 2000 (she had backed Sunderland Council against the claimant, Pamela Beresford) and calls it “unimpeachable in common sense and in law”. In particular he supports Smith’s view that a local authority might be expected to provide leisure facilities, and that’s what Sunderland was doing – and hence inviting people to use them.

   He says: “Unfortunately, by the time the case had reached the House of Lords this simple approach had become obscured.” Which may be so (or not, if one accepts the paradoxical point), but the House of Lords trumps the High Court and in general should be followed.

  On Bingham’s complicated point above (ie “It is hard to see how the self-same conduct [mowing etc] can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council’s licence”), Carnwath says: “I find this hard to follow.” Which it is – but not impossible, and nor is it irrational. He adds:

 “If land in the ownership of a public authority had been validly registered as a village green, it might well be a reasonable inference that acts of maintenance were attributable to that status. But that has no relevance to the position during a period of public use before registration, when there were no village green rights, actual or notional. The explanation for acts of maintenance by the authority during that period has to be found elsewhere. The reasonable inference was not that the public had no rights, but that the land had been committed to their use under other powers.”

  

He believes the new town plan of 1973, approved by the relevant government minister, “had the effect of granting planning permission for the development of the land as ‘parkland/open space/playing field’.” That was sufficient “appropriation” of the land for leisure to make the Beresford land a leisure resource as far as the council was concerned – and hence imply permission for people to use it as such. But that was not the House of Lords view in Beresford – which should (to ram the point home again) have taken precedence.

 

Conclusion 
Carnwath puts good arguments – and they were available to the House of Lords for consideration in
Beresford. Their Lordships in the earlier case came to the view they did and thereby created the possibility of a situation in which land not purchased pursuant to a particular piece of legislation (eg the 1985 Housing Act) could be used “as of right” for leisure by people who were neither strictly trespassers nor strictly licensees; a situation where the users are not worried that they are acting unlawfully in using the land and the owner is not bothered that they should do so.

   There may be many such patches of land that now, with local authorities under financial pressure, are at risk of being put to more lucrative use. The Supreme Court justices in Barkas could have rejected Christine Barkas’s claim by distinguishing the case from Beresford, as Neuberger acknowledged. Instead they have overruled Beresford and stripped such land of protection by playing fast and loose with legal process and constitutional niceties.

 

Twitter: alrich0660

 Head of Legal considers Barkas here 
He notes: “It’s interesting from a technical legal point of view that the [Supreme Court] Justices have chosen … to scrub Beresford from the law books – to do it obiter, outwith their core legal reasoning. That suggests the Supreme Court wants its judgments to be practical and useful in the real world to lawyers and the public – not just technically correct. I don’t think the Court has strictly speaking invoked its power to depart from the precedent set by Beresford, although what it’s said undoubtedly has the same effect.”

He adds:
I have to admit to a sneaking suspicion that the Supreme Court may not have done full justice to the Law Lords’ reasoning [in Beresford], and I think the shift in attitude from then to now is linked to our law’s increasing tendency – since the growth of the state last century, the development of judicial review since the 1970s and the advent of EU and human rights law – to see issues like this in terms of public law rather than simply private rights. In Beresford, the Law Lords treated the council as an ordinary landowner acquiescing in use of its land; in Barkas, the Justices have seen it as maintaining land in pursuit of its statutory public functions, so giving the public an implied public licence to use it.”

 

 Note
Carnwath would disagree that the intention of the Commons Act s. 15 has been balked by his judgment. He noted in
Barkas that it will still apply in cases such as Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 (Trap Grounds case).Although the land was in public ownership, it had not been laid out or identified in any way for public recreational use, and indeed was largely inaccessible.” Thanks for that, mate.

 

 Cases
Beresford
in the High Court 2000 (Smith J):
http://www.bailii.org/ew/cases/EWHC/Admin/2000/418.html
Beresford in the Court of Appeal 2002 (Dyson LJ et al):
http://www.bailii.org/ew/cases/EWCA/Civ/2001/1218.html
Beresford in the House of Lords 2003 (Walker, Bingham et al):
http://www.bailii.org/uk/cases/UKHL/2003/60.html
Barkas in the High Court (Langstaff J):
http://www.bailii.org/ew/cases/EWHC/Admin/2011/3653.html
Barkas in the Court of Appeal 2012 (Sullivan LJ):
http://www.bailii.org/ew/cases/EWCA/Civ/2012/1373.html

Materials

Neuberger on why he didn’t simply distinguish Beresford
I was considerably attracted by the notion that, as it was unnecessary to do so in order to dispose of this appeal, we should not positively say that the reasoning in Beresford should no longer be relied on, but should merely express considerable concerns about the decision, and emphasise its very limited scope in the light of the unsatisfactory nature of the arguments which were and were not taken. However, having considered the matter further, and in particular having considered the points made in argument by Lady Hale and the points made by Lord Carnwath in paras 70-86 of his judgment, I am satisfied that this would be unnecessarily cautious. I am quite satisfied that we should grasp the nettle and say that the decision and reasoning in Beresford should no longer be relied on, rather than leaving the law in a state of uncertainty, and requiring money and time to be expended on yet further proceedings.” (Barkas para 48).

 

Practice Statement 1966 on judicial precedent

Lord Gardiner LC: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.

Commons Act 2006 s. 15

15 Registration of greens
(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.

(2) This subsection applies where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

(b) they continue to do so at the time of the application.

(3) This subsection applies where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the time of the application but after the commencement of this section; and

(c) the application is made within the relevant period.

(3A) In subsection (3), “the relevant period” means—

(a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b);

(b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation.

(4) This subsection applies (subject to subsection (5)) where–

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).

(5) Subsection (4) does not apply in relation to any land where–

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land–

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied–

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land “as of right”.

 

Open Spaces Act 1906, s. 10
Maintenance of open spaces and burial grounds by local authority.

A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest, or control was so acquired—

 

(a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and

(b) maintain and keep the open space or burial ground in a good and decent state.

and may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats, and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any of them.

Housing Act 1985 s. 12

Provision of shops, recreation grounds, etc.

(1) A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part—

(a) buildings adapted for use as shops,

(b) recreation grounds, and

(c) other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided.

(2) The Secretary of State may, in giving his consent, by order apply, with any necessary modifications, any statutory provisions which would have been applicable if the land or buildings had been provided under any enactment giving a local authority powers for the purpose.

(3) The power conferred by subsection (1) may be exercised either by the local housing authority themselves or jointly with another person.

(4) The Secretary of State shall consult the Regulator of Social Housing before deciding whether to consent under this section to anything within the Regulator’s remit.

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Maria Miller affair: Are MPs over-privileged?

The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.

Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.

Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.

He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”

Commons outlaws
Little has changed but ultimately James nevertheless established his Parliament’s privilege after a conflict over the election as MP for Buckinghamshire of Sir Francis Goodwin in 1604. Goodwin was an “outlaw” meaning he had failed to answer outstanding summonses to court . Two “outlawry” cases were apparently outstanding involving debts of £60 and £16. Goodwin argued that the legal proceedings had not prevented him from sitting in the House in parliaments since those cases – in 1597 and 1601. It was pointed out that numbers of members with outstanding “outlawries” against them had sat in the House in the past. Nevertheless, on this occasion the Court of Chancery, in effect a proxy for the King, barred Goodwin, issued a new writ for the Buckinghamshire election and his opponent, Sir John Fortescue, was elected. Sir John happened to be a member of the king’s Privy Council – so the King had got his own man into Parliament.

The Commons, however, insisted Goodwin should take the seat in Parliament, declaring that the membership of the House was to be controlled by the members of the House and certainly not the king or his Lord Chancellor in Chancery. That was one of its privileges. For James the issue was equally clear: While he had “as great a desire to maintain their privileges as any prince had, or as themselves”, nevertheless Parliament “derived all matters of privilege from him and by his grant”, so by implication should not use those privileges against him. The privileges were offered by the king’s grace; they were not the right of Parliament. Election returns went through the King’s court of Chancery so it was right that they be corrected there if there were problems.

This was the position of the Commons: A legal writ was issued to hold an election, then as now. Parliament was a court. Since “all returns of writs were examinable in the court where they are returnable”, Parliament should examine the returns (ie the result of the election). Chancery was “a place appointed to receive the returns, as to keep them for the Parliament, but not to judge of them”.

If this system did not exist, the Commons declared:

when fit [suitable] men were chosen by the counties or the boroughs, the lord chancellor or the sheriffs might displace them and send out new writs until some were chosen to their liking; a thing dangerous in precedents for the time to come, howsoever [even though] we rest securely from it at this present by the now [current] lord chancellor’s integrity”.

The struggle was one about the “privileges” of Parliament, the balance of power between Parliament and the king. Arguably, wresting control of elections from the executive – the king then, the government now – was one of the crucial building blocks of the later more democratic House of Commons.

In the event a compromise was found which seems to have established Parliament’s privilege in such matters. The king suggested both Fortescue’s and Goodwin’s elections be set aside and a new writ issued for the Buckinghamshire seat. The king declared that “he would confirm and ratify all just privileges” and accepted “the Parliaments of England not be bound by a sheriff’s return”.

In future such matters would go before a Committee of Privileges of the Commons – though that did not end controversy since there would always be a political battle as to who sat on the committee and therefore who had power to decide.

This committee was replaced in 1995 by the Standards and Privileges Committee with ethical and legal issues such as the Register of Members’ Interests and expenses claims as part of its brief. In 2013 as a result of the expenses scandal, the committee on Standards was separated out to oversee the work of the Parliamentary Commissioner for Standards – and was allowed to include at least two lay members (there are currently three). But they do not have a vote so the privilege of the Commons to order its own affairs remained largely untouched.

Criminal cases
It will be remembered that various parliamentarians in 2010 argued that criminal prosecutions for false accounting in expenses claims should not proceed because of parliamentary privilege. David Chaytor and others (Elliot Morley, Jim Devine and Lord Hanningfield) claimed the regulation of expenses claims had been within the “exclusive cognisance” of Parliament and that, thanks to the 1698 Bill of Rights, what happens in Parliament, stays in Parliament. They cited Article 9: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” – claiming “proceedings” included the members’ day-to-day running of things – including their expenses claims.

But the Supreme Court decided that “neither article 9 nor the exclusive cognisance of the House of Commons poses any bar to the jurisdiction of the Crown Court”.

Lord Phillips notes in his judgment that there is an issue about how widely “proceedings” can be drawn to qualify as privileged, a matter addressed in The Joint Committee on Parliamentary Privilege Report HL paper 43-1, HC 214-1 (1998-99).

Under the heading “Right of each House to administer its internal affairs within its precincts” it notes at para 247:

The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly. One example is the Speaker’s decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance. Another example might be steps taken by the library of either House to keep members informed upon matters of significant political interest. Such steps, if authorised by the presiding officer of the House, would properly be within the scope of the principle and not amenable to orders of the court.”

So how are new Acts of Parliament to be treated? Do they apply to Parliament? Phillips said: “Following Ex p Herbert [in which AP Herbert sought a prosecution of the Parliamentary Kitchen for serving alcohol outside licensing hours; he failed and the drinking continued] there appears to have been a presumption in Parliament that statutes do not apply to activities within the Palace of Westminster unless they expressly provide to the contrary. That presumption is open to question. In 1984 three Law Lords, Lord Diplock, Lord Scarman and Lord Bridge of Harwich, on the Committee for Privileges expressed the view that sections 2-6 of the Mental Health Act 1983 applied to members of the House of Lords, although the Act did not expressly so state.” (Chaytor para 78)

He noted that Parliament has claimed no privilege for crimes such as theft or violence that occur within the Palace of Westminster. “The House does not assert an exclusive jurisdiction to deal with criminal conduct, even where this relates to or interferes with proceedings in committee or in the House. Where it is considered appropriate the police will be invited to intervene with a view to prosecution in the courts. Furthermore, criminal proceedings are unlikely to be possible without the cooperation of Parliament.” (Para 83)

He concluded: “Parliament by legislation and by administrative changes has to a large extent relinquished any claim to have exclusive cognisance of the administrative business of the two Houses. Decisions in relation to matters of administration are taken by parliamentary committees and it has been common ground before the Court that these decisions are protected by privilege from attack in the courts. The 1999 Report distinguishes, however, between such decisions and their implementation, expressing the view that the latter is not subject to privilege. I consider that view to be correct.” Parliament should refer criminal conduct to the police and assist police in their enquiries. The appeals by the four parliamentarians were thus rejected. Soon after they appeared in court and received jail sentences.

Conclusion
So, as the law stands, parliamentary privilege does not for the most part constitute immunity (as it does in other jurisdictions) for criminal offences nor a form of “benefit of clergy” in which MPs face other MPs as their judges rather than the courts that the rest of us must face.

Miller might be regarded as any employee who has breached rules at work. – to be dealt with internally and/or passed to the prosecuting authorities if it is felt she has breached the law of the land. Parliament has no right to hide anything from the police or to stand in their way should crime be suspected. An AP Herbert figure could even institute proceedings.

To use this case, however, to eat away at parliamentary privilege would be a big step to take for passing political purposes – as was allowing police to raid Damian Green’s Commons office over material he had in his possession as an MP.

To extrapolate from the current case and allow constituents’ the right of recall would be a further breach in the protections for MPs and their independence. It would imply a different sort of democracy, one of delegated MPs at the beck and call of voters and their day to day passions. It would also be largely unworkable since MPs in marginal constituencies would be at risk of constantly battling recalls on spurious grounds – distracting them from their proper work.

Perhaps a modern democracy should not rely on principles dating back to the 17th century – but who could you trust to design a new system? Relentless attack by the press coupled with the fear of facing the electorate can often work wonders – as in the case of Maria Miller herself.

Twitter: alrich0660

Zac Goldsmith argues for right of recall here
The case against Miller is outlined here
On a related issue, this looks at the dangers of creating a written constitution.

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Downey and Villiers: is there an IRA amnesty?

No amnesty for the IRA 187! That was the (apparently) tough message from Northern Ireland Secretary Theresa Villiers in response to the revelation that many potential suspects of crimes during the Troubles had received “letters of comfort” suggesting they would not be prosecuted.

These have been called “get out of jail” cards by critics of the scheme, initiated under the Labour Government in the context of Northern Ireland peace negotiations. Angry Loyalists, Conservatives and others believe it amounts to an unconstitutional amnesty, never agreed by the UK Parliament. They are particularly outraged that in the case of John Downey one of the letters, sent to him by the Northern Irish police in error, caused the collapse of the Hyde Park bombing trial. His lawyers had successfully claimed abuse of process before Mr Justice Sweeney in the High Court.

So no wonder Villiers had to talk tough. But is she actually saying anything tough? Actually, no. Her speech in effect signs up to the scheme and suggests the Tories in the Government may huff and puff but will quietly leave it alone. Her statement says nothing new and changes nothing. Her main contention is this:

They [the letters] will not protect you from arrest or from prosecution and if the police can gather sufficient evidence, you will be subject to all the due processes of law, just like anybody else.”

That’s not new, tough anti-IRA bomber policy – that’s just a description of the status of the letters. They were sent to “on the runs” (OTRs) – potential suspects of often serious terrorist crimes who had moved outside UK jurisdiction. Under the Northern Ireland peace deal those convicted offenders already in prison would be due for early release – they would serve no more than two more years for their offences. But it was difficult to know how such a principle would affect those who had evaded justice – and weren’t likely to want to rush home and put themselves on trial even if two years was the maximum likely sentence.

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Anti-fracking and ‘besetting’: a law against peaceful protest?

These are Dickensian times so why not revive a few Victorian laws to deal with the indigent, the pauper and the malcontent?

Thus two men caught taking discarded food from a supermarket skip were charged under an obscure section of the 1824 Vagrancy Act, after being discovered in “an enclosed area, namely Iceland [supermarket], for an unlawful purpose, namely stealing food”.

The charge was later (sensibly) dropped, but now anti-fracking protesters have been successfully prosecuted for another obscure Victorian offence: “besetting” the Cuadrilla test drilling site near Balcombe, West Sussex. Natalie Hynde and Simon Medhurst had superglued themselves to a gate and held up the entry of lorries for two hours.

So what is “besetting” – or “watching and besetting” as the offence is properly termed? And could it become a significant legal weapon in the armoury against protest?

The crucial point about the law is that it involves successfully preventing someone going about their legal work – which, of course, in the anti-fracking context, is exactly what protesters are attempting to do.

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Conservative Bill of Rights: the State v the People

Does Britain need a new Bill of Rights? This is a question that very quickly becomes a different question: “Should the state impose wider obligations on its citizens – broader than those set out in general law?”

The answer to these questions, according to Conservative voices pressing for a “United Kingdom Bill of Rights and Responsibilities” is “Yes” – but only as long as the second question is answered “Yes” first. Rights, it is said, must be balanced by obligations to the extent that, arguably, they cease to be “rights” at all. Instead they become citizenship privileges, accessible only to those who meet certain criteria of moral goodness.

The Conservative Party is shortly to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue.

It is therefore worth looking at an earlier attempt to create a Conservative Bill of Rights – the private member’s Bill promoted by lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf

This is expected to be the basis of the new official Tory version (Elphicke is on the committee working on the document) – and it is rather revealing. Not only does it seek to dismiss the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.

This new concept of a Bill of Rights is far from the original 1689 version – a set of rights and protections that the people had against the Executive (ie the Government or at that time the Monarch). But it illustrates the problem with many such attempts to write down the constitutional underpinnings of any state – that they say a lot about current political obsessions rather than take an objective view of the likely developing needs of a particular nation.

The intention of the Conservative version, based on what we know of Elphicke’s, is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots.

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Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it

Three giants of law have entered the somewhat confected debate on the Britain’s relationship with the European Convention on Human Rights and the Strasbourg human rights court. Former House of Lords judge Lord Hoffmann, current UK Supreme Court justice Lord Sumption and Court of Appeal judge Lord Justice Laws have given significant intellectual underpinning to the simplistic arguments of the Conservative Party sceptics who claim to see a democratic deficit between government policies and Strasbourg judgments. The first out of the traps was Lord Hoffmann, giving the Alba seminar in October.

Lord Hoffmann
In his section of the seminar Hoffmann declared himself wholly happy with the majority view in Liversidge v Anderson AC 206 (1942).

No news there, one might think – retired judge backs even more ancient judges in 70-year-old court case. But history’s view has hitherto been different. The case hinged on an emergency wartime order used by Home Secretary Sir John Anderson to imprison Robert Liversidge (aka Jack Perlzweig) without trial and without apparent reason except to say he had “hostile associations”. Liversidge had sued for false imprisonment.

The order, Regulation 18(b) of the Defence Regulations 1939, said: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … he may make an order against that person directing that he be detained.”

The issue therefore was what is meant by “reasonable cause” – and in particular, can the court decide on reasonableness or should it simply defer to the judgment of the Home Secretary – a man in place as a result of a constitutional democratic process and there to protect us all?

Four of the five Law Lords preferred judicial deference – if the Home Secretary said there were “reasonable grounds” then that should be accepted. This is Hoffmann’s position, but lawyers and scholars have generally been more interested in Lord Atkin’s minority view: that Parliament meant there to be plausible evidence for detention; if there was not, and such evidence was not presented to the court, then the judges should declare the detention unlawful. The majority decision was, on this view, unconstitutional because it substituted the judges’ view – and indeed the Government’s view – for the will of Parliament.

Hoffmann does not seem to understand this. He takes a purposive view of the legislation and so believes the judges were right to “correct” it. Since the purpose of the statute was to protect the country from Nazi spies and the like, then the powers should be whatever was required to do that. In particular, whatever the Government (not Parliament) thought was required. The “reasonable cause” qualification could be interpreted subjectively to mean “if the Home Secretary felt he had reasonable cause”. Defence of the realm trumped constitutional niceties regarding the supremacy of Parliament.

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