Category Archives: EU law

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   In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued.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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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded – of which we shall hear more, much more, later.

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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Bingham’s rule of law: outdated, utopian – and desperately needed now

How useful is Tom Bingham’s view of the rule of law? Through his lectures and book on the subject the former law lord unseated AV Dicey as the go-to guy of the Rule of Law. But what did he bring to it that makes us prefer his view to that of the formalistic and somewhat stuffy old Victorian predecessor?

Dicey’s formula can be summed up thus:

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law; whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

Certainly the idea has gained many accretions since Dicey – possibly even been “reduced to incoherence” according to one commentator: “It would not be difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”, (Judith Shklar, Political Thought and Political Thinkers, chap 2).

For the purposes of this piece we are talking in particular of Shklar’s Montesquieu version of the rule of law: “Those institutional restraints that prevent governmental agents from oppressing the rest of society”.

The concept has gathered various provisions, thanks to Bingham and others, any or all of which are devoutly to be wished but which don’t necessarily have the real constitutional weight of a “limited number of protective arrangements … meant to benefit every member of society” (Shklar again).

Lord Bingham, in the 2006 Sir David Williams Lecture, starts here: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. But he adds to this a set of sub-rules without which he thinks the rule of law cannot (or does not) exist. None of these in fact constitute constitutional principles, nor have they ever done so.

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USA v Nolan: When must redundancy consultation start?

The European Court of Justice has balked at a decision that is urgently needed to clarify the requirements imposed on employers to consult workers’ representatives before making staff redundant.

In the case of United States of America v Nolan (Case C-583/10 ECJ), the court decided it had no jurisdiction to rule on the matter. Christine Nolan worked for the US Army in Britain and the relevant EU Directive “does not apply to workers employed by public administrative bodies or … by equivalent bodies” – including the US Army.

Nevertheless her case (which has returned to the Court of Appeal – see note below) epitomises the issue. Redundancies are governed by the EU Directive 98/59. Article 2 of that directive provides:

1. Where an employer is contemplating collective redundancies, he shall begin consultations with the workers’ representatives in good time with a view to reaching an agreement.

2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant. [Emphasis added]

Furthermore to enable workers’ representatives to make constructive proposals, an employer is bound, in good time during the course of the consultations, to supply them with all relevant information and to notify them in writing of the matters specified in subparagraph 2.

But what does “contemplating” mean and hence what is “in good time”? Section188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which is intended to transpose the Directive into British law, requires consultation when the employer is “proposing” redundancies. What does “proposing” mean? Is it different from “contemplating”?

The Act sets a minimum of 90 days consultation when 100 or more workers are to be made redundant or 30 days for less than 100 – but how far down the line of decision-making can management already be before it activates the statutory consultation period? “Contemplating” seems to be something you would do rather earlier in the process than “proposing”, so unions have argued that consultation must come at that earlier stage.

USA v Nolan

In USA v Nolan Christine Nolan worked at a US army base in Britain with about 200 civilian staff. By March 2006, the US had decided to close the base at the end of September 2006 (six months or so ahead). On 21 April 2006 plans for closure became public and in June staff representatives were told all employees were at risk of redundancy. The US Army considered consultation on the redundancies started on 5 June (more than 90 days before closure was planned).

On 30 June, the Army gave the employees notices of dismissal, to take effect at the end of September. Nolan, a worker representative, brought a claim on behalf of those employees on the basis that the US had failed to comply with its collective consultation obligations by not consulting before 5 June.

The USA argued that: “no employer has an obligation to consult with its employees about a proposed operational decision to close a workplace that will lead to redundancies: it is said that the consultation obligation only arises after the employer has made such decision and is then proposing to dismiss the employees as redundant”.

Nolan, however, succeeded in a claim for a protective award (a penalty paid to each worker affected if there is not proper consultation) at an Employment Tribunal and at the Employment Appeal Tribunal. The Court of Appeal, however, sought guidance from the ECJ on when consultation should start.

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