The Absurdity of Mr Grayling’s Residence Test

For those who have never come across the case of Somerset v Stewart 98 ER 499 – decided in the Easter Term of 1772 in the reign of King George III – the head note of the case gives you all of the background you need: “[o]n return to an habeas corpus, requiring Captain Knowles to shew cause for the seizure and detainure of the complainant Somerset, a negro…”. Having considered the matter for a little over a month, Lord Mansfield, returned a short judgment that has, nonetheless, managed to ring through legal history:

“The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.”

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Do right, fear no-one!

Connor Johnston considers how a slave would have fared under the government’s proposed legal aid residence test.

The House of Commons last week debated some of the issues raised by the Government’s consultation on “Transforming Legal Aid”. The consultation – which will be considered by the Ministry of Justice over the summer recess – proposes significant further cuts to legal aid. The proposals were announced mere days after the last round of legal aid cuts came into effect. The debate is an important one. The fact that the proposals are to be implemented via secondary legislation means that the proposals will receive a minimal level of Parliamentary scrutiny. And be under no illusions. These proposals contain changes of constitutional significance. The “residence test” – which will exclude many migrants from the protection of the law – is a standout example of this.

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