The US Supreme Court offers some very sloppy reasoning

Although I studied law for the Bar once upon a time, I never made anything of it.  After a first degree including philosophy, the claims of lawyers to be engaging in rigorous reasoning seemed at best flattering, at worst forced.

It does come as a shock, however, to read a legal judgment from America’s most senior lawyers that is not just sloppy, but destructive and slightly deranged.  It is, of course, Dobbs v Jackson Womens’ Health, the revision of settled law on abortion. There are four obvious problems with it.  The first lies in the dismissal of the relevance of the principle of  privacy – quite rightly noted, in this judgment, to cover “the right to make and implement important personal decisions without governmental interference.”  This concept is what the decision in Roe v Wade relied on. It was first laid out by Justices Warren and Brandeis in an article in the Harvard Law Review in 1890: they called it “inviolate personality”.   Justice Thomas, in this judgment, dismisses such ideas  as ‘ethereal’, for which read airy-fairy.   In doing that, he is jettisoning more than a century of legal reasoning.

Second, there is the simple objection that this judgment throws stare decisis out of the window – not just precedent, but the principle that judgements should not have to be repeatedly revisted and laws should not have to be constantly reinterpreted.  There are now nearly fifty years of intervening case law, all of which are being invalidated.

The third problem rests in the dismissal of the relevance of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” Note the language: not liberty, not rights, but privileges and immunities. There are more than a hundred references to the 14th Amendment in the judgment, and every one of them refers either generally to ‘liberty’ (the main reference) or ‘rights’ (in order to deny the existence a ‘right to abortion’).  The word ‘liberty’ occurs   in the second part of the 14th Amendment – that no State shall “deprive any person of life, liberty, or property without due process of law.”  That clause is  considered more than once and its relevance is rejected – but it was not the point at issue.  The effect of the ‘Privileges or Immunities’ clause, by contrast,  is relegated to the footnotes in the judgment, and not directly discussed.

In a classic US legal article, Some fundamental conceptions (1913),  Wesley Hohfeld explains what a privilege is, and cites legal cases to back that up. A privilege is a special form of legal liberty: when people have a privilege, he explains, they are legally “under no duty to do otherwise”.    Ever since Roe v Wade, women seeking an abortion have been under no duty to do otherwise.  Roe v Wade established a specific privilege that has been the law for nearly fifty years. The 14th Amendment explicitly extends protection to people’s privileges, for the express purpose of ensuring that the States cannot resile on them, and the Supreme Court has flatly refused to apply it.

The fourth problem stems from the bizarre reading of the 14th Amendment as a purely historical document relating to a single point in time.  The judgment complains, more than once, that Roe v Wade did not review the law as it stood in 1868, the year when the 14th Amendment was passed.  At this point, the reasoning tips from strained into sinister. In 1868, women could not vote – an 1875 judgment, Minor v Happerset,  explained that being citizens did mean that women had voting rights. Votes for women are protected by a further constitutional amendment, the 19th, but votes for African Americans aren’t – those have been assumed to be protected by the 14th. If the interpretation of the 14th has to go back to its pristine state in 1868, then by the same argument, the Court could now throw out the 1964 Civil Rights Act or the 1965 Voting Rights Act – and we know there are politicians out there who would love that to happen.

The main issue on which one might say the justices have a point is that the judgment in Roe is very prescriptive about implementation: they could have opined that the Court had previously exceeded its authority, loosening the straps by delegating more authority to State governments to interpret the law.   What the Court has done instead is, metaphorically speaking, to set fire to the building – they have begun a  bonfire of the precedents, and it is not going to stop here.  The decision, to borrow a phrase from the judgment, is ‘egregiously wrong’.

 

The way out of poverty is not to be found ‘holistically’

I attended a session the other day that was intended to discuss the Scottish Goverment’s current plans for tackling child poverty.  A word that was used repeatedly in that document, and so in the presentations, jarred with me.  The word is ‘holistic’.  The plan promises a ‘holistic’   response at many points, and in a range of different contexts – such as employability, support, income generation.  What could be wrong with that?

To my mind, there are three great flaws in this approach.   The first is the implicit assumption, in much of this, that the appropriate way to respond to poverty is ‘person-centred’, personal or individualised.  Here are some examples:

We will invest [in] Whole Family Wellbeing Funding … This will help transform services that support families to ensure that all families can access preventative,
holistic support which is wrapped around their needs, and provided when they need it and for as long as they need it.

Through direct efforts to get more cash in the
pockets of families now, alongside a genuinely holistic, person-centred package of family support, we can help to ensure families receive the right support at the right time, for as long as they need it, creating the  conditions for families to navigate their way out of poverty.

It takes all of us, across Scotland, working together – united in focus  and purpose – to deliver the change to  how public services are delivered, moving to a person-centred holistic approach to supporting families.

In the published document, there are more than thirty similar phrases to choose from.  It should be recognised, however, that the circumstances that lead people to be in poverty are not, for the most part, specific to the individual or of the family.  The central purpose of the strategy is not to deal with the individual circumstances of poor families, but to reduce overall the numbers of people who are falling into poverty.   To do that, the focus has to be, not just on those who are poor currently, but on the throughput – the very large numbers of people, actually most of the population, who will pass through poverty for an extended period.  That calls for a structural perspective, not an individualised one.

There are strong hints in the figures where the problems are likely to be concentrated.  Why, for example, are most children of young mothers likely to be poor?  The answer has little to do with personal or individual factors.  It’s because the capacity of women to earn is critical to household income,  the children of young mothers  are far more likely to be young, and young children have to be looked after.  The situation calls for higher income for people with responsibility for children, and extensive, affordable  child care – ours is almost the most expensive in the OECD.

The second problem about the claim to be providing ‘holistic’ services is that it’s not true.   It doesn’t happen, anywhere, ever.  The reason why we have medical practices delivering health care, schools providing education and social security providing money is that these are all things that matter, that need to be done, and require specific routes and channels to be delivered.  We often hear the complaint that Scottish services are based in ‘silos’.  Of course they are. The doctor doesn’t teach your children to read, the social security officer doesn’t allocate houses  and the social worker is not there to take your appendix out. It’s true that specific services can be transformative, changing every part of a person’s life. Decent housing can turn someone’s life around in days, but that doesn’t happen because of an holistic assessment; it happens because housing is so important for people’s lives. The most effective strategies for  dealing with poverty have generally worked by focusing on one of the elements that lead people to be deprived – elements such as health care, education, income support or housing – and removing part of the burden from poor people.

The third issue is about policy. Targeting resources on  poor families has a clear value here and now, but it is not the only  way to deal with the problems.  We could do much more. To safeguard people now and in the future, we need to change the conditions which underlie the experience of poverty.  I have already given the  example of  child care; that needs to be done as a universal basic service, not a process targeted on poor families.  Let me take another: the case for free school meals.  That contributes to poverty reduction precisely because it is universal and basic.  Neither  child care support, nor free school meals, are ‘holistic’ policies. The same arguments extend to a wide range of services – energy, communications, transport.  Public services can make a major contribution in improving the command over resources of people on low incomes.

Computer says ‘no’

It’s admittedly difficult to get resources to people given the state of the benefits system.  The Chancellor has pleaded that it’s difficult to get higher benefits paid to people, because so many benefits don’t run on the shiny new systems introduced for Universal Credit.  Many people are still on legacy benefits, which rely on older computer systems.

A focus on Universal Credit may seem the best option available, but there are two large deficiencies in that.  The first is the deliberate exclusion of so many people from Universal Credit itself.  The coverage of UC is limited by design: the limitations are produced by

  • work requirements
  • people excluded from recourse to public funds
  • sanctions (the largest number being for people who have missed a meeting)
  • limited entitlements because of notional (or imaginary) income
  • capital rules
  • the arbitrary changes in entitlement coming from fluctuating incomes, and
  • Inaction/suspension because information required

At slightly higher income levels, people may also drop out of the UC system because of the benefit cap or the two child limit.

The second problem, of course, is that people may not have claimed UC although they were entitled to it. The government seemes to be working on the wholly implausible assumption that takeup is about 83% – which would mean that the takeup of UC was markedly better than the previous takeup of Pension Credit, Job Seekers Allowance or any disability benefit, and that that would be true despite UC’s special blend of all the factors identified as deterring takeup in previous research (PDF file).

There are other ways of getting money to people on the lowest incomes.  Cold weather payments  (ignore the weather bit) provide one obvious mechanism: they make it possible for the government to transfer money automatically to  recipients of Pension Credit, UC, Income Support, income-based JSA or ESA.   Or, if that’s too finicky, Winter Fuel Payments (which aren’t actually assessed in winter anyway) go to every pensioner, and Child Benefit goes to every child – that covers, in a simple and practical way, a substantial majority of people on lower incomes.   Putting money into pensions and Child Benefit as well as UC would be hugely more helpful than UC alone.  The targeting is not perfect, but it’s practical and a more effective than tax reductions could ever be.

Designing the National Care Service

Common Weal has offered a blistering critique of the process for designing the new National Care Service in Scotland.  They argue that it’s been designed for top-down governance, rather than service delivery, and that pledges to ‘co-design’ the service with users and carers have proved empty.  Their criticism seems to me justified. The design, and the patterns of governance which are being proposed, are both centralised and corporatist.

I don’t know, to be honest, whether a service that is ‘co-designed’ is likely to be better than one that isn’t.  People who have experience of the system are often conditioned by that experience to look for tweaks and minor improvements, rather than thinking how things might be done differently. The needs of older people with limited mobility, adults with mental health problems or people with developmental disabilities are rarely the same, the interests of ‘carers’ and ‘service users’ vary hugely, and we cannot imagine that one set of service users can speak for others.

I have written recently about some of the long-standing problems in social care: fragmentary, insecure and expensive services, the misplaced attempt to create ‘markets’ in disparate fields and the treatment of ‘personalisation’ as if it meant a selection of services from a shopping list.  I argued there that people need flexible forms of provision based on personal relationships, rather than a commoditised response. If a National Care Service is going to work, it needs to be conceived in terms very different from the old models.

Macron wins

I voted for Emmanuel Macron today.  Macron’s programme is less than compelling.  In the first round, there wasn’t much to bite on, with the main exception of tax cuts.  That’s the clue that Macron has been tacking to the right, a strategy which hasn’t played well with those concerned about public services.  But perhaps he was wise not to signal too much: Anne Hidalgo, for the socialist party, offered more than forty policies in her main campaign leaflet, and that got her nowhere. In his second-round campaign leaflet – I didn’t get it until after the vote had taken place – there was more: help with expenses and benefits, preventative health measures and help with home adaptations for care.

The choice between Macron and Le Pen wasn’t difficult. I don’t think it’s right to describe Marine Le Pen as a fascist, because she’s not bought in to the corporate authoritarianism that distinguishes fascism. (Contrast Golden Dawn, in Greece – that’s what fascism looks like.) It may be safe to say that Jean-Marie Le Pen, the former leader of the Front National, was  a torturer  (he lost a libel action against a former prime minister on that point), but that part of the status isn’t passed down from father to daughter.  However, the Front national, sorry the Rassemblement national, is still repulsive: nakedly populist and racist. The pledges to stop immigration, ‘arreter la submersion migratoire’ and close ‘radical mosques’  were quite enough reason not to vote for her. After that, the promise of higher wages and animal welfare legislation really couldn’t do much to swing it.

I didn’t get to vote in the first round, because the rather late notice I received while in Fife told me I’d have to vote in Glasgow, a round trip of more than seven hours. The Consulat absolutely refused to let me vote in Edinburgh instead – none of this nonsense about reasonable adjustments, this is French bureaucracy in all its glory.  For the second round, I arranged to be in Edinburgh, and went on to Glasgow by train.

 

The DWP is a people business. Treat it like one.

The DWP has announced the closure of several of its offices in Scotland, apparently intended to reduce the size of its ‘estate’ – that is, the buildings and offices it uses.  It’s true enough that many people working in the system found it impersonal – to that extent, location isn’t what matters most.  The estate is about more than buildings, however: it’s also important for people – where they work, how they get there, and what it’s like when they are there.

One of the last research projects I undertook, before the Great Shutdown, was a project listening to the views and experiences of social security officers in Scotland, some of whom were in places that are about to be closed down.  We had 228 qualitative responses, 142 from staff in group meetings and 86 written submissions.

My only interaction with other DWP departments is whatever contact our computers have. There’s very little with actual people. Staff move about between roles but once you’re in you’re chained to your desk and don’t get to know any other parts of the business.

There are serious delays, but staff have been clocked from dealing with them by a system that is fragmented and inflexible.

There is no staff to process claims, and there is a backlog of claims. We’re now at a stage where you’re going through your own cases and there’s ones going back … –and they’re vulnerable customers – and there’s no staff being allocated to deal with it. There are skilled staff who could address that, and process claims, but they’re put on the phones. People are put on the wrong jobs.

At its core, the DWP is a people business: it relies on people (its staff) talking to other people (the service users).  And service users have lots to say to a human being, if only they can find one.

The fact that you have a time frame at all shows they don’t have a clue – some might take two minutes, but others take 25 minutes, it takes as long as it takes and sometimes you just need to listen to them.

 You find yourself cutting them off, trying to wrap it up so you’re under time and they just don’t get the service they should.

 (On the phones) I was told (by a manager) to get to the point quicker. The woman was bereaved and crying and I wasn’t prepared to rush her off the phone.

We’ve lost that human touch.

Over the years, there’s been a recurring problem.  The central administration of the Department is convinced that  the  reason why the system doesn’t work is that the boneheads in the offices can’t do it right.  The people in the offices, meanwhile,  do everything they can to make things work, despite their instructions.

Benefit Officers should be able to help people and use initiative. The current system is too rigid.

They (managers) just look at whether you are following the script and not if you’ve helped the person.

The officials know what needs to be done.  They want to be able to sort people’s problems out.  Lots of them say that they want to be able to follow problems through until they’re dealt with properly.  It’s the system that stops them from doing it.

The Way to Work … won’t work

I didn’t respond immediately to the Government announcement of new rules for unemployed people, because I can’t actually make sense of those rules.  All I’ve found to go on is a press release, which tells me that unemployed people will be expected to find work in any job, regardless of skills, after four weeks.  More specifically, the press release says this:

 those who are capable of work will be expected to search more widely for available jobs from the fourth week of their claim, rather than from three months as is currently the case. … Under existing rules claimants have 3 months to find a job in their preferred sector before facing the prospect of sanctions. New rules will mean that sanctions could begin 4 weeks after their initial UC claim, if they’re not making reasonable efforts to find and secure a job in any sector or turn down a job offer.

The way the system is supposed to work is this.  People make a claim for Universal Credit when they become unemployed.  They are then invited to a meeting with a work coach who gets them to sign a claimant commitment.  They do not receive benefit before five weeks.  So it seems that

      • the claimant commitment will be established and signed at a point where the obligations allow them to specify what their expertise and competence makes reasonable.
      • After four weeks, the claimant commitment will have to be torn up and replaced with other obligations.
      • The renegotiation is going to happen before claimants are actually paid anything.

I may have this completely muddled – I can’t tell from the details that have been made available – but if this is right, what I’d expect to happen is this. Some work coaches will  jump the gun – if they don’t, it would double their workload. People with skills will not bother claiming at all, because the extreme economic prejudice of taking any job will outweigh the potential benefit. Others will be sanctioned because they don’t turn up to a second meeting with the work coach. Employers will be flooded with inappropriate applications.

Stepping back from the details, there’s much more wrong with this policy.  The first misconception is that sanctions encourage people to get into work.  There’s no evidence to back that up.  The main use of sanctions in practice is to ensure compliance with the benefit rules – the vast majority of sanctions are given for not coming to meetings – and it’s not clear that they even do that.  Second, there is the myth that unemployed people won’t work otherwise.  Before the government started messing about, about 90% of unemployed people were back to work in a year.  That figure has fallen to about 80%, I suspect largely because of the forced transfer of many people from Incapacity Benefit or ESA – those who are too sick to work.  And the third is the ridiculously misconceived position that Universal Credit is mainly a benefit intended to get people into work.  It isn’t. It covers people on low wages, and as the transfer is proceeding there are increasing numbers of people without jobs who  are chronically sick or caring for young children – people who would previously have been receiving Incapacity Benefit/ESA  or Income Support.  The numbers of long-term unemployed people are relatively small, but policies have been driven by the myth that dealing with them is the main purpose of the benefits system. No wonder it’s a mess.

 

How to fix the welfare state

How to fix the welfare stateI’ve just received the first copies of my new book, How to fix the welfare state.   The brilliant cartoon on the cover, showing Beveridge’s Five Giants and their plus one, is by Dave Simonds.

The book reviews a series of problems and issues in British social services.  If you think the Welfare State hasn’t changed, in the course of nearly 75 years, think again.  Social security was meant to be based on insurance; increasingly, it’s based on means testing.  Social care hardly existed in its present form; nor did child protection. Health care has seen the closure of long stay hospitals and the development of group medical practices in the community. Education now is mainly delivered in comprehensive schools and mass universities.  Council housing has largely been supplanted by a system of means-tested benefits intended to pay for rents. And other areas of activity are newly established, notably equalities and employment support.

Each of the chapters in the book outlines the structure of services, the impact of some false and misleading narratives, and the real problems that need to be addressed. The book outlines where approaches to the services have gone wrong, and makes suggestions about what they need to do to get things right.  Attempts to make services more personal, to offer more choice or to make them run more like businesses have distracted us from what welfare is meant to do.  The Welfare State should be aiming to provide decent standards for everyone. In the book, I make the case for services that are more predictable and offer greater security: more universal and less reliant on commercial markets.

The reviewers have commented:

“An honest and realistic appraisal of the current state of welfare. The analyses and insights are illuminating and thought-provoking and should be required reading for a wide range of professionals.” Steve J. Hothersall, Edge Hill University

“Spicker draws upon his four decades of writing to analyse the current position of ‘the welfare state’. An unmissable contribution written in the best traditions of social administration.” Bob Hudson, University of Kent

This is a personal take on the welfare state; I had things to say, and thought it was time to say them.

Additional note, 27th January: An irresistible review from Ms Bennett Junior!

The Scottish Census of Health and Wellbeing: inept and possibly unethical

There’s some controversy in Scotland about a census of ‘health and well-being’ that’s being asked of schoolchildren of different ages.   This questionnaire seems to have been put together by a committee, all of whom wanted their particular issues to be included and addressed.  It’s  one of the worst designed questionnaires I’ve seen in years.

The area that’s attracted most concern relates to questions about children’s experience of sex. I found a copy of the census questionnaire from a local authority website, and was taken aback not just by the most controversial questions, but by the whole exercise.  I have no particular expertise relating to children’s health, but I taught research methods for more than 25 years, and this is not the way to do things.

First question: why is this a census?  Censuses are intended to give a comprehensive, precise count of issues.  There are well-known problems in doing this, because systematic non-response leads to systematic biases in the results.  Several local authorities have opted out, and many pupils will. The count will be meaningless.  What matters – the same as any other quantitative questionnaire – will be the relationship between answers: for example, whether there is a relationship between educational experience and negative body images.  We do not need a census to do this. It can be done at least as well, and probably better, by a series of smaller-scale social surveys.

Second question: in what circumstances does it make sense  to put together a questionnaire that is this long?   There are 61 questions, but because there are sub-questions,  pupils are actually being asked to answer, by my count,  126 distinct questions.  The rubric claims that the questionnaire should be completed in 20 to 40 minutes. To do this in 40 minutes a pupil could have to answer one question every 20 seconds.  Even if the questions weren’t sometimes difficult, this is wildly unrealistic, and it raises questions as to how valid the exercise can be: the exhausted respondents will skip, fabricate answers to finish or simply give up.

Third question: has the questionnaire been piloted and validated? There are indications it might not have been: the length of the questionnaire, the complexity of the language used, and the validity of responses to deeply personal questions.  Pupils are supposed to know what ‘intimate touching’ means (q 49) and whether an experience amounts to ‘penetrative vaginal sex’ (qs 50 and 51).

Fourth question: what measures have been taken to protect vulnerable respondents?   Some children will be distressed by the questions.  Some of that distress is predictable – for example, from those who have been subjected to sexual abuse.  Every school administering a questionnaire should have someone with specialised competence standing by to offer support in the event of distress – and that cannot be the teacher tasked with supervising children using computers, because it would not be possible for that teacher to break off for a distressed pupil before the questionnaire is complete. The FAQs issued by the Scottish Government say this:

What happens if a child or young person needs help, or wants to discuss something, after taking part in the Census?  At the beginning and end of the questionnaire, children and young people will be informed that if any of the Census questions have made them think of any problems, or has raised any issues they are having, then they are advised to speak to someone in relation to the information they have provided in the Census.  For example, if pupils are having problems with other pupils (e.g. feeling that they are being bullied), they are advised to talk about this with their parents / carers / teacher / support worker, etc.

That is not good enough.  This project should not have passed ethical review.

So, you may reasonably ask, what should the government have done instead?  That’s easy enough to answer:  a series of much smaller questionnaires, based on proper samples, administered by people with a competence in the field, and supported by people capable of responding to any distress.  It should include a proportion of open, qualitative questions. Good social research starts with listening.

Evidence to the Welsh Affairs Committee on Universal Basic Income

I gave oral evidence to the Welsh Affairs Committee at a session on November 3rd, and have only just got round to reading the transcript, which is here. I made three important reservations about Universal Basic Income: the distributive impact, especially if it was to be funded by closing down existing benefits; the impossibility of defining a level that would be ‘adequate’; and the many other purposes that benefits have.

There are two points in the transcript at which the MPs misconstrued what I was saying, and while the format of the session wouldn’t allow me to go off on a tangent to explain, I can clarify the points here.

Q116 was not addressed to me – it was answered by Jonathan Williams.  Q117 was, and Geraint Davies MP seems to have taken me to mean that people should be forced to work. I can’t see where he got that from, which makes it difficult to answer; I said no such thing, and wouldn’t.  I did say that conditionality does not work and was counter-productive.

In Q143, Robin Millar MP thought I was arguing to ‘tweak’ the system. This, at least, is an understandable misapprehension; I should have been clearer. I have argued, here and elsewhere, to break up big benefits into smaller ones.  However, I don’t think that’s a ‘tweak’ – it would be a fundamental reform.  See, for example, my blog on How to abolish Universal Credit.  The rationale for redesigning the system about simpler,  smaller benefits with common pay-days is that then ‘income packages’ – the money people finish with – can be adapted to their needs without massive intrusion or putting everyone on the same conveyor belt.