Uber – a (temporary?) victory for common sense over law

Amir Paz-Fuchs
Amir Paz-Fuchs

As a late-October treat, the Employment Tribunal (ET) found that Uber drivers are, in fact, well, Uber drivers. This is less tongue in cheek than what it may seem; for a significant part of the ET’s was more common sense than law. In fact, as the ET went through the case law, it seemed that it was stacked against the claimants. Thus, you have a caddie in a golf club who was paid through the club, which was reimbursed by patrons for whom he provided services; and there is case of a lap dancer who was paid in ‘heavenly money’; and there was even a straightforward precedent of taxi drivers, whose position was (unsurprisingly) very similar to that of Uber drivers. In all these cases, the Courts denied the claimants any employment status, including the low-tiered status of ‘worker’, which would guarantee rights to minimum wage, working time protection and (where relevant) whistleblowing protection, for example, all of which were claimed in this case.

But there’s more law, and more bad news. As may be expected, the contract that existed sought to cover all the bases. The drivers were, initially, referred to as Uber’s ‘partners’ (a striking resemblance to a similar practice maintained by the scourge of workers – Walmart; in a delightful twist – it has just been announced that a collaboration will be tested between the two companies). Later on, in a confusing shift, revised documents referred to drivers as ‘customers’ while those previously known as customers were now ‘users’. And, needless to say, all documents denied any form of employment relationship between Uber and the drivers. Indeed, documentation (and arguments) suggested that not only is there no such relationship, but that Uber itself is not a transportation company at all! It is simply a software company, that developed an app! We return to this point below. But it’s not only the formal documentation. Uber’s lawyers made sure that where they could, the common law tests would point to drivers being self-employed. Thus, the Business Reality test, which asks where the risks lie, point directly where the company wanted it to point. The driver is to supply the vehicle, must meet all the expenses, fund their licences, treat themselves as self-employed for tax purposes, and are not provided with a uniform.

So much for what the company could do. What it couldn’t change, however, was the reality. Uber chose drivers through an interview process. In advertising itself, it referred to the high quality of, you guessed it, ‘Uber drivers’, to the high standard of used as ‘Ubers’ and to its customers as ‘Uber passengers’. How does Uber maintain the high standard of drivers? By encouraging users to rate their experience, initiating ‘quality interventions’ when those are sub-par, and eventually ‘disengaging’ drivers who do not manage to maintain the necessary ratings.

And while Uber vehemently denied exercising any ‘control’ over the drivers, the app suggests the route, which the driver is expected to follow. In addition, while Uber maintained that the driver is a self-employed business, working on its own (and, indeed, purchasing a service from Uber!), he was not allowed to contact the client following the ride, and in particular, was strictly prohibited from giving the client his phone number, as that would be considered solicitation, and thus a breach of the agreement with Uber. Similarly, drivers owed Uber duties of confidentiality, and were obliged not to speak negatively about Uber.

What did the tribunal make of all this? It managed to distinguish some of the cases where the claimant was not an ‘integral’, but rather an ‘ancillary’, part of the business (caddie at golf club, lap dancer at night club). It simply ignored the business reality test. And it regarded the all important (for some) ‘mutuality of obligations’ test as not-so-important after all, if claimants seek to establish worker, as opposed to employee, status.

But in the main, the most striking thread of the ET’s reasoning is its resort to common sense over legal conceptualisation, legal documents and legal masquerade. It cites with agreement Elias J (as he was then) in Kalwak (reversed by the Court of Appeal), who warned about ‘armies of lawyers’ who simply place clauses in employment contracts to make them appear different from what they truly are. And it went further, expressing, perhaps, no less than indignation. The passages are worthy of quoting at length:

[87] “We are struck by the remarkable lengths to which Uber has gone to compel agreement with its (or perhaps we should say its lawyers’) description of itself and its analysis of the legal relationship between the two companies, the drivers and passengers. Any organisation (a) running an enterprise at the heart of which is the function of carrying people in motor cars from where they are to where they want to be …. But (c) requiring drivers and passengers to agree, as a matter of contract, that it does not provide transportation services and (d) resorting in its documentation to fictions, twisted language, and even brand new terminology merits, we think, a degree of scepticism.

It quotes, in agreement, a similar case decided by the North California District Court (11th March 2015), also rejecting the assertion that Uber is ‘merely’ a technology company, stating succinctly:

Uber does not simply sell software; It sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch cabs.

And the ET continues:

[90] ‘The notion that Uber in London is simply a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous. In each case, the ‘business’ consists of a man with a car seeking to make a living by driving it.

Words to live by, and so rare.

What are the implications of the case? Despite the loud headlines, suggesting that it will affect not only 30,000 drivers in London and 40,000 across the UK, but the gig economy overall, it is worth reiterating that Uber drivers were only guaranteed worker’s rights, which are far more limited than employee’s rights (for example, they have no right for compensation for unfair dismissal). Moreover, Uber immediately wrote to its drivers that it will appeal the decision. Indeed, it continued its ignominious tactics by writing to the drivers that the decision applies only to the two drivers who submitted the challenge, and therefore there is no change in the driver’s ‘partnership with Uber’. This is obviously misleading, to say the least, but to what extent can the decision apply to the gig economy as whole? Other developments, such as the HMRC investigation into the status of Hermes drivers, suggest that authorities are finally awakening to the precarious reality of workers in this brave new world. But for the time being, we can take comfort in what is, at the very least, a temporary victory for commons sense.

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Sussex Clinical Legal Education Launch

Amir Paz-Fuchs
Amir Paz-Fuchs

Below is the text of my talk at the Sussex Clinical Legal Education Launch Event, which took place 5th October, 2016, at the Old Courthouse, in Brighton.

 

I would like to say a few words to introduce, from our perspective, what we’re doing, and why we’re doing it. Sussex Clinical Legal Education is both a practical endeavour and a new way to think about teaching law. It is practical, because it is about exposing students to the difficulties that litigants face when seeking to access justice

In The Rule of Law, Lord Bingham wrote that the “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”. The increase in court and tribunal fees, on the one hand, and cuts to legal aid, on the other, are, to borrow the phrase from none other than the President of the Law Society, “a huge setback for justice in the UK” that will deter people from appealing adverse decisions.

But it is also an important development in the way we teach law. The Association of American Law Schools wrote, almost 25 years ago, that

Clinical education is first and foremost a method of teaching. Among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problem in role; the students are required to interact with others in attempts to identify and solve the problem; and, perhaps most critically, the student performance is subjected to intensive critical review.’

Indeed, the way we see it, this is a start of a revolution in the way we think about teaching law, about our commitments to the community, and about our engagement with the legal profession in Brighton and the region.

So what are doing now? From the beginning of this academic year, we’ve started a new Clinical Legal Education module. Students on the module take part in lectures on access to justice and the role of clinical legal education as a group, but each student is also involved in one of five projects, or clinics. If you look through the brochure, or on our website, you will find some details, but very briefly, they are:

First, Citizens Advice – an exciting collaboration with Central and South Sussex Citizens Advice, led by Bonnie.  Students received training with Citizens Advice, and have already been meeting with clients as part of the gateway service. We’ll be looking towards collaborating with other Citizens Advice Branches in the near future.

Second, CLOCK – in this project, led by Lara and Marica, students sit in the Court to assist litigants in person with forms, arranging court papers, suspending evictions and small claims, and finding legal advice.

Third, Employment Law Clinic – Ioannis and myself oversee students who offer free legal advice in areas of employment law. In doing so, students are supervised by external solicitors from one of four law firms that have already expressed their willingness to assist us: DMH Stallard, Fortis Law, Healys and Martin Searle.

Fourth, Family Law Clinic – here students meet with clients and offer free legal advice, supervised by a solicitor who is also a member of staff – John Jupp, in areas including family disputes, divorce, separation, children issues, co-habitation and financial matters.

Fifth, and finally, the Housing and Welfare Law project involves collaboration with two housing charities – the Brighton Housing Trust and JustLife. Alex and Lucy supervise the students, who engage with people in temporary accommodation, who have difficulties accessing benefits, and/or who are not sure what rights they have.

So as you can see, Sussex Clinical Legal Education already involves a wide range of models: students in courts, students in charities, students in the communities, students on campus. Students giving legal advice and students facilitating access to professional, legal advice.

It involves an inside-out, and an outside-in, process. Inside out – in the way we teach, what we do in classrooms, but also managing the enthusiasm from quite a few members of staff who have stepped up with ideas to develop programmes and clinics in their field of interest. These already include environmental law, creative industries, and criminal justice, for example. But it is also outside-in, by which I mean responding to approaches and needs from the community, and in particular – from our new-found friends and partners. Here we find that there is a dire, and unsurprising, need for assistance in areas of asylum and migration, which we will try and respond to.

So this is a good opportunity as any to thank project leads for the incredible amount of work they have put in for the past two years of planning; to John Jupp, John Child and Carly Brownbridge for their crucial role in steering the project; to Andrew Sanders and Sue Millns, and formerly – to Stephen Schute and Heather Keating, for their support and financial commitment on wbehalf of the school; and finally, but crucially, to our partners, in the community and in the profession: without your support we could never have gotten off the ground, and as a result of  your enthusiasm we know that this only the beginning.

So clinical legal education is very much about the profession, and about the community. But it is also very much about students. Law students. Our law students. There have been quite a few studies, here and abroad that show that many students come to law school for altruistic, rather than self-interested, reasons. They want to make the world a better place, address injustices and pursue social justice. They leave law school, however, in a very different mindset, concerned mainly about, well, making money. To what extent have they just ‘grown up’, and to what extent has the law school played a role in this change of heart? Whatever the answer you give, it is clearly the case that clinical legal education helps keep the passion alive, showing students that, equipped with the power of the law, one can truly do good, and improve lives. And this is true, of course, not only in their student lives. For lawyers are gatekeepers to the realm of law – they, we, you, construct the law and also have a role in deciding how high are the walls between lay members of the community and a true understanding of their rights. This is, after all, a great deal of what access to justice is about.

Can you please join me in thanking them, and our speakers – Robert Bourns, Joe Miller and Prof Adam Tickell, for helping make this a very memorable evening.

 

Amir Paz-Fuchs is Director of Sussex Clinical Legal Education.

Brexit: the lawyer’s first 100 days

Erika Szyszczak
Erika Szyszczak

Reposted with permission from the UK Trade Policy Observatory

 

The “first 100 days” has become a standard by which to evaluate important political times. Undoubtedly, the momentous decision on 23 June 2016 to break up the current geopolitical space of Europe will be examined by historians as a decisive period of modern European history.

From a lawyer’s perspective the most striking feature of the last 100 days has been the legal uncertainty of how to implement the referendum result. This represents the challenge we love. So this blog post examines some of these uncertainties.

Dreams of a quick divorce

Dreams of a fast divorce from the EU have been thwarted by a lack of legal consensus on who may trigger the Article 50 TEU notification to leave the EU, and as to when is the optimal time to do it. The lack of a pre-nup gives much scope to the lawyer.

PM Theresa May is determined to retain a tight rein on this legal act, considering it within the powers of the executive. But this position is being challenged in the courts. For example, in the English High Court, several applications for judicial review have been given leave to proceed and the skeleton argument in the lead judicial review action has been published.

The thrust of the legal argument is that the correct UK constitutional requirement in order to trigger Art 50 is for parliamentary scrutiny and approval, alongside consultation with the devolved administrations in Scotland, Northern Ireland and the Welsh Assembly.

The legal issues framing the decision of when to trigger to Article 50 are also contentious.

Domestically, there is the need to reconcile the future internal relationship of the UK with Northern Ireland and Eire and also with Scotland and Wales.

The UK must also reconcile its future relationship with its largest trading partner: the EU. But there are other relationships to consider that are the offspring of the relationship with the EU. For example, there are third states linked (currently and in the future) in trade agreements with the EU, and the World Trade Organisation (WTO). It is a matter of legal conjecture as to what should be in the content of the withdrawal agreement with the EU under Art 50(2), and how far this agreement will set out the future legal relationship between the UK and the EU and other trade arrangements.

Living apart

How will the UK untangle 40 years of marriage? A first step will be to examine the existing EU law that has been transposed into domestic law. The UK has always fought hard to determine the final shape of EU law, and has had little difficulty in transposing EU law into domestic law using the ‘copy out’ procedure. One example of is the recent transposition of procurement law into UK law.

Lawyers must find a way to give effect to EU law that the UK wishes to retain in the future.

The repeal of section 2 of the European Communities Act 1972 is at the heart of the UK withdrawal process. Sect 2 gives effect to the supremacy and direct effect of EU law, and allows for EU Directives to be implemented quickly into domestic law by means of a Statutory Instrument (SI). Thus lawyers must find a way to give effect to EU law that the UK wishes to retain in the future, especially EU law which has been transposed using the SI procedure, as well as laws necessary to ease future trade deals.

Just because we’re divorced doesn’t mean we can’t be friends

Looking to the future relationship with the EU there are a number of existing legal trade frameworks developed by the EU with non-member states which could be bought off the shelf. The most immediate choices would be to take a look at the EEA Agreement, the Deep and Comprehensive Free Trade Agreement with Ukraine, the comprehensive economic and free trade agreement with Canada or the EU-Turkey customs union.

But PM Theresa May appears to want something more bespoke for the UK. High on the shopping list of UK desires is access to the Single Market without the concomitant demands of membership of the Single Market; in particular, special rules on the free movement of persons and not having to contribute to the finance of the EU. Here there is little scope for mediation: the EU has made it clear that there is no Single Market a la carte.

Access to the Single Market would only ease trade in a limited way. The UK would not participate in the rule-making for the Single Market and also would not be able to stop the influence of the European Court of Justice (CJEU) on the interpretation of the Single Market rules, in particular the definition of no-tariff barriers to trade, the scope of mutual recognition and the host of legislative lacunae filled by the CJEU in its day-to-day work.

The legal limits on finding future trading partners

The indications are that the UK seeks future trading partners in a similar bespoke fashion, spurning the tendency for large multi-party deals.

Dr Liam Fox, the international trade secretary, has indicated to the press that exploratory talks with non-EU states such as India have already taken place.

Liam FoxDr Liam Fox, International Trade Secretary, has said he is already in talks with India over a trade deal.
Photo © Chatham House.

This is tricky from a legal perspective.

The UK is tied to the rules of membership of the EU; it cannot negotiate any new deals until after Brexit has occurred. EU trade policy is within the exclusive competence of the EU. Even in policy areas where the EU has shared competence with the member states, the UK would still be limited in its actions by Article 4(3) TEU, the duty of fidelity. So, for example, the UK may not depart from a position agreed by the EU in international negotiations. Even where mixed agreements are found the European Commission takes the lead negotiating position for the EU and the member states.

There are press reports that legal advice given to Dr Liam Fox suggests that “there is a high risk” of the European Commission starting infraction proceedings against the UK if such talks went ahead, with the UK being landed with a “big fine”.

This is sensationalist reporting. Any infringement proceedings brought by the European Commission under Article 258 TFEU are not automatically brought before the CJEU. There is a long period of negotiation. Only when talks break down will the European Commission go to court. This takes several years. If the CJEU finds a member state in violation of EU law, a member state is under a duty to comply with the judgment of the Court. It is only when a member state does not comply that financial sanctions come into play under Article 260 (2) and (3) TFEU. Fines do not automatically flow from a breach of EU law: the European Commission must bring a second action against the member state.

Brexit means Brexit: but what does it mean?

Law and lawyers will have a central role to play in easing the UK divorce from the EU and drawing up the divorce settlement. PM Theresa May has not acted hastily or given away details on what the UK negotiating stance will be, or when it will start with earnest. But she cannot delay for long. The next 100 days will bring more certainty to many of the legal issues churned up in the aftermath of 23 June 2016.

Erika Szyszczak is Professor of Law in the School of Law, Politics and Sociology at the University of Sussex, and a member of the University’s UK Trade Policy Observatory

Who Should Pay for Access to Justice?

Amir Paz-Fuchs
Amir Paz-Fuchs

The summer of 2016 was an interesting one for those concerned with the state of access to justice in the UK. The House of Commons Justice Committee published a report that criticised the imposition of court and tribunal fees by the Government; and the Supreme Court struck down the residence test introduced by the then Lord Chancellor, Chris Grayling. Together, the message from two prominent branches of government, is a mixed one. On the one hand, it shows that the changes that the Government has put in place in recent years have been extremely detrimental for those are most in need of accessing the justice system. On the other hand, it shows that the battle is not lost. That the term – access to justice – still resonates strongly and holds sufficient sway to challenge government policies, and even to brand them as illegal. In this post, we focus on the Justice Committee report (hereafter: the report) and only note a few curious aspects concerning the Supreme Court ruling.

It is difficult to describe the Justice Committee Report as anything more charitable than a scathing critique of government policies in this area, an assessment given further force by the fact that the Committee is chaired by a member of the Conservative party – Robert Neill MP. The report seems to be bewildered not only

Robert Neil MP
Robert Neil MP

by the decisions themselves and the impact on hundreds of thousands of court users, but also on the amateurish structure for fee remissions and the evidence based process (or, rather, lack thereof) following which the decisions were made. But notwithstanding the importance of the process, the changes themselves are striking in their audacity, and their implications. We note here the fees introduced in Employment Tribunals [ETs, EATs], Family Courts and Immigration Tribunals, each having special characteristics.

The rise of fees had the most immediate effect in Employment Tribunals. The MoJ Impact Assessment document from 2011 reveals that these were implemented with two main aims in mind. First, a “fundamental policy aim … to transfer a proportion of the cost of running the ET and the EAT from taxpayers to the users”. In fact, by the time the fees were implemented, in 2013, the government intended to achieve full cost recovery by “charging fees reflecting, or in some cases exceeding, costs incurred…” [para 10]. Second, to encourage the resolution of disputes outside of a tribunal. While the document does not explicitly mention the aim of discouraging weak or vexatious claims, it does mention the objective of encouraging claimants to make a more informed decision about the value of their claim. Moreover, a Department of BIS report, Resolving Workplace Disputes, from the same year, said in relation to employment tribunal fees that “a price mechanism could help to incentivise earlier settlements, and to disincentivise unreasonable behaviour, like pursuing weak or vexatious claims” [p. 50]. So what is the result of all these benign motivations? The Coalition government introduced employment tribunal fees in 2013, in two categories: ‘Type A’ and ‘Type B’. Type A claims, which are considered less complicated (e.g. unpaid wages) command £160 issue fees and £230 hearing fees (£390 in total); Type B claims, considered more complex (e.g. discrimination) require £250 in issue fees and £950 in hearing fees (£1200 in total).

The effects were dramatic: an overall drop of 70% in employment tribunal claims submitted following the introduction of fees, spread across all claim ‘types’: working time (78% drop); unfair dismissal (72%); breach of contract (75%); unauthorised deduction of wages (56%); sex discrimination (68%). Moreover, if the government did indeed expect that the introduction of fees will encourage the resolution of disputes through ACAS, the law of intended consequences worked in brilliant fashion here. The Justice Commission concluded, based on a considerable amount of evidence that “far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee” [64]. Indeed, an employment solicitor gave evidence that “When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee” [64]. As for vexatious claims, the government had no evidence of the proportion of such claims before, or after, the imposition of fees. Moreover, since the proportion of claims rejected was very similar before and after, there is little to suggest any impact on that front. It should be noted that despite this evidence, a legal challenge to the imposition of employment tribunal fees, brought by Unison, failed before the Court of Appeals, and is now before the Supreme Court.

In family courts, fees for divorce proceedings were enhanced from £270 to £410 in 2015, and to £550 in 2016. As the President of the Family Division, Sir James Munby, noted before the Commission, there can be no behaviour changing rationale for these fees. In fact, he stated, (at [87]) that

There are only two things that the justice system does where you have no choice but to use the system. One is divorce; the other is probate. …. Therefore, we have a captive market… I have to say that there is something rather unattractive—particularly if one is selling justice, which one should not be doing—in battening on to the fact that there is a captive market and that, because there is no elasticity of demand, one can simply go on putting up the fees until it becomes another poll tax on wheels.

Finally, the imposition of fees for Immigration Tribunals, and specifically – the extent of the increase, seems uniquely cruel. Fees were increased to a cost recovery level: for a decision on paper from £80 to £490; for an oral hearing from £140 to £800; and new fees, of £455 for permission to appeal to the Upper Tribunal, and £510 for the hearing, were introduced. There is little surprise that the combination of new fees amounting to hundreds of pounds, a six-fold increase in existing fees, all imposed on extremely vulnerable claimants, including asylum seekers, facing the power of the state – raised concern with the Commission.

The flip side of a fee imposition regime is a fee remission structure. But here, too, the Commission finds that the government plan is flawed. Without delving into the details, the way the government calculated a claimant’s disposable income for the purpose of assessing eligibility borders on the fictitious (see [76]). In addition, as the Council of Employment Judges noted, the low level of income necessary for remission eligibility will exclude many low paid workers in the care, security, hospitality or cleaning industries who previously claimed – successfully – unauthorised deductions in sums that were small, but significant to them [72].

Finally, it is worth mentioning the ‘evidence base’ aspect, or lack thereof, that supposedly facilitated the imposition of fees. The report dedicates a full section to the way the Government conducted itself in this regard. It cites senior members of the judiciary who were “scathing about the quality of the research used by the Ministry to inform its policy formulation” [49]. Indeed, their response refers to the research undertaken as “clearly inadequate” (para [26] to the response). In addition, the Master of the Rolls, Lord Dyson, has characterised the research as

Lord Dyson
Lord Dyson

“lamentable”; the Chairman of the Bar Council described it as “insignificant”; and the President of the Law society argued that it is “poor” [49]. Apart from the sad state of affairs, the fact that a central policy is implemented with so little appreciation of its effects on people’s rights, and people’s lives, suggests that it could have only been carried out due to a dogmatic view, that renders effects and consequences as insignificant. This stubborn approach, of the “my mind’s made up, don’t confuse me with the facts” variety, is not, one would hope, characteristic of policy making in the UK in general. But the strong hold of the neoliberal agenda trumps not only concrete, discrete, policies, but also policy making procedures and the rules of the game.

This latter point leads us to the aforementioned decision by the Supreme Court, in The Public Law Project (PLP). The PLP challenged the draft order put before Parliament by the Lord Chancellor, on 31 March 2014, which introduced a residence test as a precondition for eligibility for legal aid. It claimed that the order is ultra vires section 9(2) of the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (“LASPO”) and is unjustifiably discriminatory in its effects. Both claims were accepted by the High Court, and both were rejected by the Court of Appeals. Writing for the Court, its President, Lord Neuberger, reversed again. He noted that while section 9(2)(b) empower the Lord Chancellor to “vary or omit services”, they do not empower him to “reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services” [30], which is what the draft order seeks to do. Since he accepted the ultra vires argument, he saw no need to address the discrimination issue.

Although the ruling is ‘administrative’, and thus somewhat ‘procedural’, in its focus, there are two important points that may be made. First, although it is understandable, it is also somewhat unfortunate that the Court decided not to delve into the substantive argument. As I noted elsewhere, in an analogous context (a successful ultra vires argument that led to a DWP workfare programme being struck down): procedural challenges may often be more successful, but they are short lived. Indeed, in that case, that Government simply revisited the empowering legislation, created the necessary ministerial powers, and the Minister put in place new regulations to (retroactively!) legitimise the programmes. Substantive challenges, of course, are usually less successful, but if they are – cannot be addressed through simple, administrative measures.

The second matter that arises from the decision concerns the justification given by the MoJ for this policy. Here, as with the cost recovery policy scrutinised by the Justice Committee Report, we find the footprint of neoliberal and chauvinist thinking. As the Court notes, the residence requirement was first outlined in a MoJ paper, Transforming Legal Aid: Next Steps, published in 2013. In the Equality Statement, attached to that paper as Annex F, the MoJ described the “primary objective” of the residence requirement as being “to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer”, and further stated that “the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it” [6.3, quoted in the judgement at [14]). The first quote transforms public services to market services, by suggesting a hypothetical ‘contract’ between citizens and taxpayers, effectively viewing the former as ‘consumer-citizens’. The latter quote seems to be misleading: the residence test denies legal aid to some of the most needy claimants, such as migrants fleeing horrific situations, or women fleeing domestic violence. So, sadly, the only possible interpretation of the latter statement is that the residence test is intended to fence out not those who are not ‘in need’, but those whose needs ‘we’, the taxpayers, do not wish to address.

Amir Paz-Fuchs is a Senior Lecturer, Sussex Law School