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Magna Carta at 800

June 18th, 2015 | Posted by admin in Law & Politics | News - (0 Comments)

Recently, Runnymede in Surrey saw the political and ruling elite of Britain descend upon its tranquil countryside yet again. They were there to commemorate and mark 800 years since another group of ruling elite had curbed the power of a monarch, and in doing so set out certain rights due to all the people.

The Queen was also in attendance- at the same place where her ancestor had signed a peace treaty with his nobles so long ago, and had altered the relations between ruler and ruled. Also in attendance was Dr Justin Welby, the Archbishop of Canterbury: it was a previous Archbishop of Canterbury, Stephen Langton, that had been instrumental in drawing up the document they were commemorating.

Magna Carta in itself is a remarkable document. Taken in the context of the medieval time that it was signed in, it is quite revolutionary and very much ahead of its time. In a stratified, hierarchical society, dominated by an Anglo –French elite, with the feudal system linking land ownership, duty and loyalty, and all layers society together, the very rights that it presupposes are enormous. The rights and freedoms we take for granted today are indeed often set out in Magna Carta or subsequently, and would have been unheard of by our medieval ancestors.

Although many of its 63 clauses have either been repealed, or become irrelevant over time, several clauses still remain significant today. Notably and famously, Clauses 39 and 40:

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice.

Much of the charter is essentially a peace agreement between the King and his barons. Provisions are also made for those affected or disposed by the fighting, and redress and restoration made. The Church also received protections under its terms- and justice and the rule of law is championed and upheld:

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes.

45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.

63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.

Even 800 years on, such is its impact that Magna Carta is still very much relevant today. The freedoms it sets out, its efforts to uphold the law, and the charter’s essential sense of democracy are as relevant today as they were back in 1215.

In 1215, a council of barons had presented the document to King John to sign. In 2015, the Prime Minister merely delivered a speech. In his speech, Prime Minister David Cameron expressed his praise for Magna Carta- and his hopes for the future. That future- following on from the Queen’s Speech- involves the new government (now with a majority, and not sharing office space with another party) consulting upon a British Bill of rights. The Conservative plan is to eventually supersede the current Human Rights Act with a British Bill of Rights. The government points out the Human Rights Act (which they often pointed mention was introduced by Labour), based as it is on the European Convention on Human Rights, although worthy and effective in upholding human rights, has resulted in some interesting results.

Not only have the European courts called the UK to account over human rights issues previously, but many say that those European courts have strayed into areas of UK law that are best left to the UK courts to decide- such as prisoner voting. Further, strict application of the Human Rights Act has led to some legal verdicts and decisions that rights and proper under law- but morally and ethically questionable. In court, human rights arguments are regularly use by both sides, and on appeal. At law, lawyers regularly use and abuse human rights provisions to advance their client’s case, clearly oblivious to the deeper meaning of the legal clauses that they use so freely.

It is of course a typical British irony that the same Queen’s Speech that set out plans for consultations of a Bill of Rights also set out plans to debate a new laws (such as an Extremism Bill, inter alia) that would in some situations curb civic rights, and allow the state to eavesdrop and conduct surveillance upon the British people.

Further to that, the Queen’s Speech set out plans to debate such Bills– bit only referenced a consultation on a Bill of Rights. This reflects the fact that there is opposition (even amidst the Conservative back benches) to such a Bill, particularly amongst what is left of the Labour and Liberal Democrat benches. Many civil rights campaigners are even more vocal at any efforts to repeal the Human Rights Act in favour of such a Bill. The Prime Minister knows that consulting, debating and then pushing through such a Bill will prove to be an uphill struggle over the next few years. Indeed, he would probably find more consensus, and make better progress, with Chancellor Angel Merkel and President Francois Hollande concerning the UK’s exit from the EU, than with his own government and opposition concerning a UK Bill of Rights.

With that in mind, the Prime Minister would do well rot recall that we actually have a Bill of Rights, dating from 1689. This came into being following the Restoration of the Stuart monarchs, and sought to address King James II’s actions. The Bill called for free and open elections, sought to uphold the supremacy of the rule of law, amidst other provisions.

If the Prime Minister’s memory does not stretch that far, then maybe he should look back at one of his own speeches (quoted from above). He should recalls that we already have a system of rights in place, a system which has been referred to, and copied around the world. It has ben called the ‘cornerstone of liberty,’ and sets out the freedoms and rights of citizens.

The Prime Minister should save himself the trouble he will face with a Bill of Rights, and look to Magna Carta instead. Although the parchments it was written on are faded, tattered and torn 800 years on- it still looks good for its age.

The law of equity, trusty and restitution (along with their companion land law) is every law student’s nightmare. It is complicated, archaic, and convoluted. It is heavy in pure legal theory, and has more rules and intricate legal principles than buying a house.

The cases are very technical (Vandervell v IRC, Grey v IRC, Mascall v Mascall, Cain v Moon, inter alia), and the judges never seem to make things easy in their judgments. Equity has long been the bane of every law student; excepting those who actually find equity interesting, and enjoy the mental challenge surrounding the details of presumed resulting trusts, Quistclose trusts, and Anton Pillar orders.

However, sometimes equity does have its moments. Sometimes, an equity case comes along that makes all legal minds (regardless of their opinions of the subject) smile, laugh or shake their heads. A current proceeding at the High Court in London is one of those cases.

In the High Court, the plaintiff (or claimant, in this post- Woolf Reform legal world) is one Mrs. Nora Al- Daher, a self-confessed gambling addict. She is suing the Ritz Hotel in London for allowing her gamble (and lose) £2 million in one evening at their casino. Her lawsuit is in response to the Ritz’s legal claims against her for £1m that she still owed the Ritz.

Her case, according to the press reports, is that she had already lost money gambling in other casinos that day in April 2012 before arriving at the Ritz. Upon arrival, she had informed the staff that she was a gambling addict, had lost money gambling earlier, and did not want to gamble further that evening. As the evening progressed, however, she reached her credit limit. Instead of stopping her credit, the staff apparently encouraged her, and increased her credit limit. Mrs Al- Daher further claims that the Ritz staff took advantage of her, and should have stopped her from playing.

Appearing for the Ritz, Clive Freedman QC has been ably rebutting those claims. In defence, Mr Freedman has stated that Mrs Al- Daher has been paying her debt for nine months after her losses without any complaint. Further, she still owes the Ritz £1m, as several of her cheques have not been honoured. Indeed, according to Ritz Hotel Chief Executive Roger Maris, it is usual for some high stakes gamblers to be granted extensions on thier credit limits. Additionally, Mrs Al- Daher’s track record of paying her gambling debts had been very good; consequently, the Ritz staff were happy to extend her credit limit. At this time, the case in the High Court is still on-going.

Keen students of equity will at once recall a similar case; that of Lipkin Gorman v Karpnale. In that leading and ground breaking case, the House of Lords heard how Mr Norman Barry Cass, a solicitor at Lipkin Gorman, drew £220,000 from the firm’s accounts, and gambled it at the Playboy Club. Owned at the time by Karpnale Ltd, the Playboy Club gained over £150,000 (which Mr Cass lost) indirectly from Lipkin Gorman. Mr Cass (after fleeing to Israel) was brought back and imprisoned. Lipkin Gorman subsequently sued the Playboy Club for the return of the stolen money. It must be noted that at that time gambling contracts (being contrary to public policy) were considered void under the Gaming Act (1845). The case was a headache for the equity lawyers involved- and for subsequent generations of law students.

Lipkin Gorman v Karpnale was a significant and leading judgment in the area of restitution and unjust enrichment. Quoting from a legal dictionary, restitution is essentially the legal principle that, if a person gains at the expense of someone else, and there are no legal grounds for them to do so, then that person has been unjustly enriched. Consequently, restitution must be made.

Legal academics and judges have been debating, altering and discussing theories of unjust enrichment for centuries, with various degrees of complication. It was Lord Robert Goff in Lipkin Gorman v Karpnale who boldly advanced the UK principles of restitution with his “change of position” theory. As much as the writer would like to (equity and unjust enrichment being of academic interest to the writer) comment on that leading case further, there is neither scope nor word limit to so.

The House of Lords ruled that the Playboy Club had to return the money to the solicitors- less the amount they had paid out to Mr Cass in winnings. Restitution (repaying the money) had to be made: but by paying out winnings to Mr Cass, the club’s position had been changed, reducing their liability.

As was stated at the beginning, equity is complicated and not every law student’s favourite subject. Some of the cases are very technical and dull- but some can be quite entertaining to read. What the judges actually thought of the parties involved in such cases luckily does not make it into the law reports.

Returning to the gambling Omani (Mrs Al- Daher is the wife of the Foreign Minister of Oman, to make the matter more embarrassing for her), a large part of her case will probably be determined by similar principles of unjust enrichment. The fact which will give the lawyers an equity related headache is that she already owes the Ritz money. As such, her case is not a straightforward case of unjust enrichment; not that there ever is a straightforward case of unjust enrichment.

At the centre of both cases, though, is a gambling addict. Both cases serve to highlight the fact that, to serve an addiction, ordinary people, or those with a great sense of morality, will commit all and every act to fuel and service their addiction. The addiction can be to alcohol, prescription medication, drugs, cigarettes- or, as here, gambling. Whatever the addiction, it is very difficult to overcome, and requires not only great strength of character, but a lot of support, from family, friends, and medical professionals. Without great care and treatment, an addiction can spiral out of control, and make people act in a way that they never would normally. Such out of character behaviour can often land them in great legal trouble, as in both cases cited. With the correct approach and treatment, such cases can be avoided. It is a great shame that such people are often more stigmatised and derided, rather than treated, sympathised with, and looked after.

Whatever the legal lessons learned from the cases of Mr Cass and Mrs Al- Daher, it is more the moral and human lessons that should be learned.

If history teaches one thing, it is that we never learn from history.  What has happened in the past, happens again, with monotonous regularity. Even if the lessons from the past are abundantly clear, those lessons are rarely learned or applied.

Taking advantage of the crisis in Ukraine, and the instability following the collapse of President Yanukovich’s regime and his subsequent flight, Russia has reasserted its traditional territorial claims over the Crimean peninsula.  Just as many claimed that the Iraq War was ‘all about the oil’, so it can easily be said that Russia was probably not motivated by the voice of the pro- Russian movement, or by the apparent threat to Russian in Crimea. The reality is, as many commentators have pointed out, that for Russia it was probably ‘all about Sevastopol’. A regular navy base in Crimea, the key thing about this unassuming military establishment is its location- right on the Black Sea.

Any Naval forces or ships stationed there have unrivalled access to the Black Sea. From that, applying modern theories of naval power, the countries surrounding the Black Sea (many of them former satellite states of the old USSR…), can be controlled by the country whose naval forces have supremacy in the Black Sea. Indeed, if the warships are of a suitable size, they can sail by Istanbul, and from there into the Aegean Sea, before entering the Mediterranean Sea. For Russia, having control of the Black Sea ultimately enables their fleet to gain access to the West via the Mediterranean. As such, the Kremlin was always interested in taking control of the Sevastopol bases, and that small peninsula.

It is similar to the Falkland Islands. Although small and insignificant, their position is very strategic. Right in the middle of the South Atlantic, the islands sit around a wealth of offshore natural resources, and also at a key place geographically (located near the tip of South America, art the point where the Atlantic meets the Pacific, and a good staging point for Antarctica). Setting aside issues of politics, diplomacy, citizenship, international law, and territorial rights, essentially the location of the Islands is what makes them of interest to both London and Buenos Aires.

Recent events have shown that full control of Crimea, despite protests and sanctions from the EU, the UN and other august international bodies, now rests firmly with Moscow. In addition to such diplomatic hand wringing, noises of protest are coming from the rest of the Ukraine, probably worried about the very real prospect of being the next territory to be annexed by President Putin, and in returning to being under Russian control.

Admittedly, there is s strong Russian element, socially, culturally, linguistically, historically and politically in Crimea. However, many would agree that that Russian element of Crimea does not justify what is essentially an invasion. Of course, such a takeover did come after a referendum, a democratic vote which saw 97% of Crimeans choose to join the Russian Federation.

To put that into context- not everyone voted. Many ethnic Tatars refused to vote in protest, for example. Additionally, it would take a very brave person to defy the Russians when their troops are already very active in the region. Similar to when Austria voted for anschluss with Germany in 1938, when the Nazis had a strong presence in Austria, or on her borders.

That is but one of several similarities between the secession of Crimea and the 1930’s. The end result of that episode of international relations shows one thing conclusively; appeasement simply does not work. As more recent history shows, involving countries such as North Korea, Iraq and Iran, economic sanctions (the favourite tool of the UN in enforcing resolutions) and similar simply do not work. What is needed is for the West, and the EU to take a firm line, and to adopt a tough stance- even if it involves deploying NATO forces to the region.

However, that is never going to happen. The Western nations and the UN lack the political will to do so, and the international consensus to take such firm action. Indeed, political practicalities also prevent this; with several European countries going to the polls over the next few years, no politician wants to be seen endorsing a policy that would prevent their re-election, or a policy that would prove extremely unpopular domestically. The only nation powerful enough to take affirmative action against Russia is the United States. This would take both nations back to the dark days of the Cold War- and would be contrary to America’s traditional foreign policy basis in the Monroe Doctrine. Additionally, America is fully stretched and committed to conflicts in the Middle East, and domestically faces economic and social issues which are more pressing than tackling Crimea.

There is also another factor which prevents Western governments from going against Russia- gas.

Natural gas is a main source of energy for the West. In Europe, most natural gas (but by no means all) comes, ultimately, from one source- Gazprom, the Russian energy giant that has (or controls) pipelines across most of Europe, the Aegean region, and the Near East. If Gazprom, under the Kremlin’s orders, would turn off the supply of gas to a certain country- the consequences are better left imagined than stated. Taking a hard line against Russian annexation of Crimea potentially means turning off the lights at home. As such, politicians and diplomats exercise great discretion in criticising Russia’s annexation of Crimea.

Ultimately, to avoid effectively being held to ransom by Gazprom and Russia, the countries dependant on Gazprom for gas must become energy self-sufficient, or find alternative sources of energy, or gas. That, however, leads to other issues. The public at large remains sceptical of nuclear power, and ultimately considers it dangerous (after Fukishima and Chernobyl, such an opinion is not wrong). Fracking is similarly controversial, and would take many years to fully develop and exploit. Turning to oil means depending heavily on the Middle East, with all the difficulties that entails. There is more natural gas in many places across the world- such as in several areas surrounding the North Pole (which involves dealing with the environmental lobby, and the northern nations who jealously guard the Polar region as their own back yard) , in the South Atlantic (mostly inaccessible) , and in the North Sea (already exploited), for example. The only alternative is- to depend on Gazprom.

As such, it can only be hoped that Russia will be content with annexing Crimea. As the world map changes again, with the flag of the Russian Federation now flying in Crimea in the aftermath of the recent Ukrainian protests, it can only be hoped that that will be the end. However, that question remains unanswered as of now, as the Russian military takes over the military bases in the peninsula, and Crimea is prepared to switch over to formally becoming a part of the Russian Federation in a month (the switch of Crimea from Ukrainian to Russian hands is being conducted with great efficiency and speed, almost as if it was planned). As the Trans Dneiper region of Moldova now looks likely to attempt to join Russia as well, many of the satellite states of the former USSR are now probably feeling slightly uneasy- especially as support and protection from the EU and NATO is unlikely to be forthcoming and diplomatic condemnation and speeches will only go so far.

The questions as regards President Vladimir Putin‘s future intentions and plans remain uncertain. The only certainty is that, by sheer force, he has backed the EU and the West into simply complying with his actions. Those same nations are now being reactive, and waiting for his next move. It is President Putin who is calling the shots, not the West, as the Russian bear slowly awakens. Indeed, given how things have occurred over the last few months since the beginning of the protests against President Yanukovich in Kiev last December, a suspicion does come to mind. Russia acted with commendable promptness in responding to the chaos, uncertainty, and political vacuum following the flight of President Yanukovich, and the installation of a caretaker government. Given how President Putin has taken the lead the last month or so, could he have taken the lead earlier, and been behind the Ukrainian protests that enabled him to take advantage of the chaos?

History shows that stranger, more sinister, matters have occurred, in conflicts and international crisis of the past. History also shows that no one applies the lessons of the past to current issues, preferring seemingly to give the same response each time, getting the same results. In this case, the consequences of letting the same old historical events happen again could be severe. Action needs to be taken- even if only doing what is necessary to become less dependent on a foreign power for essentials such as energy and natural resources.

History teaches that we never learn from history. That is a history lesson that should be forgotten, and itself consigned to history.