The SSAC review of Mandatory Reconsideration

The Social Security Advisory Committee has published a review of Mandatory Reconsideration.  It is a much better report than the press release suggests, because it reviews in detail the problems and issues that claimants have in getting decisions reviewed and corrected.  However, the headline element in the Conclusion, picked out by the press release, is that “Properly conducted, Mandatory Reconsideration could be an efficient process that provides opportunity for timely review, the admission or reinterpretation of evidence and the avoidance of costly tribunals.”  That is very questionable.   Support for the principle of MR confuses the arguments for internal review – which is always necessary for quality control and management of mistakes – with the new, failing system, which delays and obstructs the opportunities for internal and external review.

There are three very fundamental problems with MR.  The first is that decisions made against a claimant are implemented before any response or contrary case has been considered.  The second problem is that MR does not offer claimants the opportunity to know of and respond to information relating to their case.  This is a basic breach of ‘natural justice’, one of the core principles of UK law.  The third is that because MR is a mandatory process for claimants, there  is necessarily a delay in correcting unlawful action: barriers to access are obstacles to justice, and justice delayed is justice denied.

It is debatable, then, whether the system of Mandatory Reconsideration is lawful.  Because judicial review is only available when other recourse has been exhausted, MR would have to be complete before a judicial test would be possible, and the long delays in implementation make this a considerable obstacle.  But it does stand in breach of long established principles of administrative law.  That is why the UN Committee on Social, Economic and Cultural Rights has just condemned the UK system for “the absence of due process”, in breach of its obligations under the UN Charter.  Mandatory Reconsideration cannot be ‘properly conducted’ – it is designed to be improperly conducted.

The National Fraud Initiative in Scotland

Audit Scotland has published a report on the operation of the “National Fraud Initiative”, which is mainly concerned with the operation of big data in order to detect fraud by searching for anomalies.  The central assumption of the report seems to be that improving the consistency of data will save money by limiting opportunities for fraud.

There is a central confusion at the heart of this approach.  Following the reports of the DWP, and by extension the tests applied to local government in benefits administration, the report muddles three overlapping, but quite distinct issues: fraud, error and selectivity.  Using data to review inconsistencies identifies potential sources of error.  It does not necessarily identify, or relate to, fraud – which depends on deceit.

In general,

  • measures to refine selectivity are liable to increase error (the more conditions there are, the more there is to go wrong.  That is why the rates of error in Pension Credit are fifty times those for State Pensions.)  Equally, they and they create opportunities for fraud.   They do not, then, improve the efficiency of the system.
  • measures to protect systems against fraud are likely, for the same reason, to increase error.
  • measures to protect against error may reduce opportunities for fraud, but do not necessarily do so – it all depends on what kind of error is being addressed.

There may be opportunities to save money through big data; but anti-fraud measures are often expensive, and in a situation where many people do not receive the benefits they are entitled to, smoothing out inconsistencies might cost more.

After Cameron

There have been glowing tributes to David Cameron, somewhat at odds with his record of blunders and misjudgements while in office.  We ask less of Prime Ministers than the press often supposes.  Premiers don’t ‘run the country’ in any meaningful sense – they can’t, for example, sensibly say that next year there’ll be more food or warmer housing.  Their principal job is to appoint a government and speak for it.  As a PR man Cameron was well able to do the second, but he fell rather short with on management.  He left people in jobs far too long; egregious mistakes (health service reform, the Borders Agency, penal reform, school governance, Universal Credit and two omnishambles budgets ) were introduced clumsily with too little consultation, defended for far too long, and the perpetrators encouraged to go on; issues were ignored, and recurrent problems were left to fester before being dealt with in panic.  Government too often looked like a pastiche of The Thick of It.  Theresa May’s record in government has been distinctly patchy  (see e.g. this broadside from the Spectator) – and on some occasions, shockingly bad – but in the wreckage of the last government she has been seized on as the only thing still afloat that might stop us going under.

The new Cabinet is more noteworthy for its personalities than its administrative track record or sense of purpose.  I suppose it’s conceivable that the new team will make it through to November without scandals, resignations or replacements, but it will be a surprise if they do.  The direction of policy is much less clear.  It’s all very well to say that the new priorities will be to forge new international agreements, but we don’t actually have the power to do that – not just because these things depend on negotiation with third parties, but because the European Union (for anyone who hasn’t noticed) has exclusive competence on trade, and will continue to have exclusive competence until the UK actually ceases to be a member.   So we’re starting out with a government that has no definable international agenda apart from giving notice to the EU.  Add to that the gaping void in domestic policy that was revealed in the last Queen’s Speech.   Politics, like nature, abhors a vacuum; there is some reason to be apprehensive about how that void is likely to be filled.

What does a ‘left wing’ agenda look like?

The criticisms of UK social policy I have just reviewed raise further questions about the way we identify political issues.  It’s remarkable that while problems of hereditary privilege and persistent social exclusion have been nodded to by a Conservative Prime Minister, the political ‘left wing’ does not seem to see problems of poverty, inequality and public action as major issues.   An article in the Independent last month identified public support for eight “left wing” policies proposed by supporters of Jeremy Corbyn:

  • Rent controls
  • Increased taxation of very high earners
  • Renationalising the railways
  • The minimum wage
  • Banning nuclear weapons
  • Cutting tuition fees for students
  • Opposing the Iraq War
  • Not bombing Syria

It’s possible to read bits of this as opposing the free-market principles of the political right, but it’s a long way from a radical agenda.  There is nothing intrinsically left wing about pacifism or environmentalism; people can and do hold positions which support privilege or condemn the poor at the same time as they argue for military restraint.  While I have plenty of reservations about Britain’s recent military adventures, I’m deeply unimpressed by Momentum’s attempt to use Corbyn’s record on the Iraq War as a touchstone of his socialist principles.  (I seem to remember that the principal political opposition at the time came from the Liberal Democrats.)

Socialism used to be thought of as standing for liberty, equality and collective action.  Whatever happened to them?  There may be a few issues knocking about that might reasonably be thought to have some claim for consideration by a supposedly left-wing party:

  • rights in insecure employment
  • security out of work (most obviously threatened by ‘conditionality’ and sanctions)
  • access to urgent health care
  • affordable and decent housing
  • child care
  • places in schools where people live
  • the rights of the dispossessed
  • promoting public employment, and
  • collective action to deal with public squalor.

It’s been noteworthy, and disappointing, that neither of the principal candidates for leadership of the Labour Party has shown much inclination to engage with that agenda.

 

A UN Committee criticises UK social policy

I have been away for a week, and I have a little catching up to do.  David Webster has drawn my attention to a report by the UN Committee on Economic and Cultural Rights.  David draws particular attention to the criticism of the sanctions regime, which refers   to “the absence of due process and access to justice for those affected by the use of sanctions”, but the criticisms of current UK government policy go well beyond that, including its actions on poverty, inequality and people whose status is marginal in society, such as travellers and migrants.  It points to the lack of a regulatory framework for business, the failure to consider distributive impacts  and the lack of legal protections.  These are all points which opposition parties in the UK have persistently failed to address.

A review of sharia law in Britain: why should we assume it’s being ‘misused’?

An independent review for the Home Office has appealed for evidence about the application of sharia law in the UK.  While Muslims may reasonably expect a balanced report from the Chair, Mona Siddiqui,  and the inquiry is beginning with evidence from people with experience of sharia in practice, the terms in which the inquiry is framed are extraordinary.  It does not begin by asking how sharia law or how the courts work, but whether sharia law isn’t  dangerous and liable to misuse.

“Individuals with experience of sharia law are being urged to take part in an independent review examining whether the religious code is being misused within Britain.  The government-commissioned sharia law review is exploring whether the application of sharia is incompatible with the law in England and Wales.  It will also examine the ways in which the practice may be being misused, or exploited, in a way that may discriminate against certain groups, undermine shared values or cause social harms.”

I have no direct interest in sharia law, but I grew up in a world where people could always go to a rabbinical court if they chose; while I have may lots to say about the unreasonable bits in my own community’s law, I can’t see any fundamental objection to a system of mediation  based in shared principles and voluntary consent.   In the febrile and sometimes toxic atmosphere surrounding the current clash of cultures,  a less tendentious brief might have been better judged.

Chilcot: how not to write a report

I had no great hopes of the Chilcot enquiry; I’ve only read the ‘Executive Summary’, 150 pages of disconnected sentences, and have no plans to read more.  When the Francis report (on hospitals) came out, I complained about excessive word length, the repetitions, and the failure to understand what an executive summary was.  Chilcot has the same vices.  It was immediately obvious that, with 2.6 million words, only specialists and obsessives would read it, that the writers lacked the confidence and competence to select the facts that mattered, and that anyone who wanted to cherry pick and reinterpret material would be able to do that, regardless of evidence to the contrary.   This is the third recent report, after Levison and Francis, that seems to have been produced by a team who don’t understand what a report is and what it has to do.

A petition to the European Parliament

I have prepared a petition on change.org, as the first step to presenting a petition to the European Parliament.  Here is the text.

Our European citizenship is a fundamental right. Please defend it.

We are citizens of the European Union. In the Charter of Fundamental Rights of the EU, the Union committed itself to the principle that each and every citizen has basic rights. However, the treaties did not directly create distinct legal protections of the status of a citizen, which were considered to be sufficiently protected by the actions of Member States, and Protocol 30 specifically reserves judicial processes relating to such rights to the United Kingdom. If the United Kingdom ceases to be a Member State, British nationals may no longer additionally become European citizens.  It does not follow that the fundamental rights currently held by British nationals should be treated as if they never existed.

The EU needs now to consider how to deal both with the rights acquired by UK citizens and those acquired in the UK by citizens of other countries. Citizenship has been described as ‘the right to have rights’. If the rights of citizenship are truly fundamental, no person who currently enjoys the status of a European citizen should have their citizenship removed. No process which denies European citizens the right to have rights can be considered consistent with the Charter.

The consent of the European Parliament is required before any agreement with the departing member state can be concluded. We therefore petition the European Parliament, as the guarantor of EU citizenship, to safeguard the fundamental rights flowing from EU citizenship both for us and for those elsewhere in the EU. We ask the Parliament and the institutions of the EU to ensure that British citizens who are currently citizens of the European Community, and who wish to preserve that status, should on application be able to retain European citizenship after the UK ceases to be a Member State.

Please sign the petition by following this link.

I have had the advantage of comments and phrases from Tony Venables and Richard Upson.  The next stage will be, after signatures are in, to present this to the online petitions web-page fo the European Parliament.  It is difficult for people to register their support (it took me a day to get my first log in), which is why this is starting on change.org instead.

I’ve been asked – why start another petition, when others were off the blocks first?  The answer is (a) because this is going somewhere different – the European Parliament – and is the only one currently aimed there and (b) it refers to European principles.

Free movement demands planning: both the EU and the UK government have muddied the water on managing immigration

David Cameron has just been to an EU summit to say that the EU must accept the restriction of free movement of labour; it’s not going to happen.  I was reluctant, during the referendum campaign, to engage in debates on the subject of immigration:  every attempt to intervene on the other side only reinforced the idea that the EU referendum was really about ‘controlling our borders’.  The debate was misconceived in three ways.  First, the UK does ‘control its borders’.  In an open society, however, people cross back and forward across borders all the time, and they are routinely checked.  Routinely, of course, means not very thoroughly, but doing it thoroughly to everyone passing a border is unthinkable.   Border controls can in theory contribute to immigration control – in theory – but, as the experience of the USA shows, this is neither practical nor effective.  All it shows, not very reliably, is that some visitors overstay.

Second, what is done at the border is of very limited relevance to the control of immigration.   An ‘immigrant’ is not just a visitor; it is someone who comes to settle, which implies living, working and participate in another society.  While the UK controls visits, it does remarkably little about immigration as such, with a signal lack of intervention in employment in particular and policies for housing and urban planning that are substantially laissez-faire.

Third, restricting the flow of migration is not the same as controlling the numbers.  Restrictions limit potential numbers, because it restricts the flow, but it does not actually bring them under control.  There is no fixed quota or number that might be achieved (let alone a figure for ‘net migration’, which depends on other factors beyond the government’s control. )  The situation is made more complex because there are several different kinds of circumstances where people come to settle.  The principal categories are economic migrants (workers and families), family reunion, asylum seekers and refugees, and students. (There were 437,000 overseas students in 2014/15, including 125,000 from other EU countries.  Education is more than a service industry, but it counts as one of our major exports.)

There is a problem with migration, but it is not the problem that the UK government has been talking about. The problem is that once migration happens, as it does all the time, there needs to be some adjustment to it.  Both the UK government, and the institutions of the EU, are in the grip of a market based ideology which thinks that ‘free movement’ of money, goods, services and people is the same thing as unfettered movement.  Markets have to be structured,  regulated and facilitated.  Where they have negative effects, those need to be managed and compensated for.  When the EU was set up, the main concern was the impact of trade and specialisation on employment, and the Social Funds were set up to deal with that.  But now, the neo-liberals are in the ascendant, both in the UK and in the EU.   When it comes to the movement of people, there is no mechanism for management, at the level of the EU, the national government or local government.

Jobs need to be in places where people can live.  There have to be houses, schools, roads.  That means either that jobs are directed to those places, or that places have to be built and developed to go where the jobs are.  I prefer the first of those options, but that’s not crucial to this argument.  The point is that there is no inconsistency between the free movement of people – a fundamental principle of the European Union – and  planning to meet population change.  On the contrary, free movement depends on such planning.  If EU rules are obstructing free movement, because they prevent planning happening, they need to be changed.  But I suspect that the problem rests, not in the rules as such, as the assumption that the principle of free movement renders everyone helpless.

What happens to European citizenship?

Decisions have consequences.  Like many others, I’m deeply unhappy with the vote to leave the EU, and have had to think about the implications for myself and my family.  The first and most obvious solution is to seek to be part of a country that does want to be in the European Union.  I did not vote for Scottish independence last time; I will next time.

I have also been looking at the implications of the withdrawal of European citizenship.  Citizenship rights are part of the Charter of Fundamental Rights of the European Union. (The UK did not opt out of the Charter.  The protocols on the UK say that judicial and legislative powers relating to those rights rest with the UK.)

It seems that there is no legal basis to continue to hold European citizenship when the UK leaves – which rather undermines the description of citizenship as a ‘fundamental right’ in the Charter.  (See for example comments by Steve Peers in the seventh question he addresses.)  That does not mean that there is no moral or political argument, or that the process is impossible.   In some other realignments citizens have been given options to retain citizenship on application – many people are currently taking advantage of the arrangements  in Northern Ireland.  The European Parliament has consistently pressed for European citizenship to be treated distinctly from nationality in the member states, and I am considering a petition to the Parliament on that basis.