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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One rule for them

[This article was originally published by the New Statesman]

One summer evening, back in August 2005, Andrew Michael Southard was arrested because he swore at a police officer.

Southard and his brother were out cycling when two officers stopped them one evening in central Portsmouth. As the officers searched his brother, Andrew took pictures of the incident on his mobile phone saying, “Don’t fucking touch me, you can’t touch him.” This and telling the officer to “fuck off” led to his immediate arrest.

Southard was charged, and later convicted in the magistrates court, of using “threatening, insulting and abusive behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to section 5(1) and (6) of the Public Order Act 1986”.

Southard’s case is not unusual. Swearing at a police officer is the common cause for many young people (as young as 12 in the case of a pint-sized offender arrested and convicted under the Public Order Act because he called an officer “a wanker”), ending up embroiled in the criminal justice system.

For many of the young people continuously stopped and searched by police where I live in East London there is a thin line between a routine stop and a hearing at the mags with a criminal record looming over your future. Irritated because this is the second time you have been stopped today? Stopped at a tube station, angry because everyone is staring and thinking you’re a criminal? Swear in frustration and they have you, a perfectly legitimate arrest under the Public Order Act.

The Sun newspaper reported today that Andrew Mitchell said to a police officer last week: “Best you learn your f***ing place. You don’t run this f***ing government. You’re f***ing plebs.” A kid in Hackney saying half as much to an officer last Wednesday would be in the magistrates court this morning fighting for bail.

So it is galling that Andrew Mitchell has not been arrested, charged, and made to put his defence to the courts, the way countless young people are obliged to every day.

And it is galling that the media and other politicians are chiding him only for being “discourteous” and “rude”.  Even worse, that left-leaning commentators and politicians are only aghast at the use of the word “pleb”*. Those class warriors wringing their hands over Tory snobbery are just as out of touch. Whether or not he said “plebs” is irrelevant if he is allowed to evade the rule of law applicable to the ordinary people.

It is precisely such rampant hypocrisy that fuels the sense of disenfranchisement that contributed to the rioting last year. Then commentators compared looters to MPs fiddling expenses, an odd comparison as the situations are very different. But here, in a rare instance where the experience of a politician mirrors life lived by ordinary people, there is a real analogy to be made. Here we have a politician breaking the law in the same way teenagers do every day, swearing in frustration at a public official. Yet he is not being hauled to court to defend or explain his actions; instead it is trial by Twitter and Radio 4, at worst he may have to resign. Where is the justice in that?

*pleb (Oxford English Dictionary definition)
noun. Informal, derogatory,
a lower class person.