The House of Commons recently 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.
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.”
Though Somerset’s case did not put an end to slavery, it was a significant milestone on the road to abolition. To my way of thinking it probably marks the single most important contribution to this goal made by the common law.
Under the current proposals – specifically the proposed “residence test” for legal aid – James Somerset would not get legal aid. If he did apply for public funding to make an application for habeas corpus, the Legal Aid Agency would have to refuse him. What would they say?
Dear Mr Somerset,
We regret to inform you that your application for full representation has been refused. This is because you are not lawfully resident in the UK. In your application you have told us that you are the slave to a Mr Stewart of Virginia, and that you are currently detained without your consent in the vessel of his agent, Captain Knowles, lying in the river. On the information you have provided we are not satisfied that you have built up a sufficiently strong connection with the UK while detained in the vessel to justify the grant of public funding. As the lawful property of Mr Stewart we do accept that you are lawfully present in the UK. However, as we have said, you are not lawfully resident. The distinction, as I am sure you will appreciate, is an important one.
Further, while we accept that there may be a wider public interest in the abolition of slavery, you will understand that we have to focus limited public resources on the most important cases. As you know, as part of an export-led economic recovery, slavery forms an integral part of King George’s deficit reduction strategy. We are also increasingly concerned that tax payer money in being used to subsidise frivolous applications for habeas corpus.
You have asked us to take into account your EU rights and your rights under the European Convention on Human Rights, in particular Art.4 the prohibition of slavery. We have had regard to these matters. However they need to be balanced against Mr Stewart’s right to hold property under Article 1 Protocol 1 European Convention on Human Rights, and the principle of free movement of goods. We are satisfied that refusing legal aid in these circumstances is a necessary step to restore the credibility of the legal aid system as a whole in the eyes of the public.
The Legal Aid Agency
Absurd? Of course it is. That’s the point. The laws in this country should apply to everyone. Black, white, popular, unpopular, citizen or migrant. It is absurd and regressive to think otherwise. That is what the equality before the law means. As Lord Scarman put it in ex p Khawaja  A.C. 74, 111 “[h]e who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Sommersett’s case.”
Let's remember that Mr Grayling is not just an MP or the Secretary of State of Justice; he is the Lord Chancellor. His constitutional role in upholding the rule of law is expressly preserved by section 1 of the Constitutional Reform Act 2005. And, pursuant to section 6A of the Promissory Oaths Act 1868, upon taking office, he swore “that in the office of Lord High Chancellor of Great Britain I will respect the rule of law”. So it is particularly worrying that Mr Grayling seems to be unaware of these fundamental common law principles. Perhaps he would do well to take one of Mr Gove’s new history lessons.