When I’ve written about social security payments before, I’ve at times used the example of Funeral Payments as a system which had too many moving parts – as in my blog, here. I was interested, then, and pleasantly surprised, to see that applicants have few complaints about the application process – which you can see an example of here, because the Scottish Government has understood that people need alternatives to on-line processes. It’s still a convoluted process: applicants are asked about themselves, whether they get benefits, their relationship to the deceased person, the estate’s resources and the funeral arrangements. However, from the claimant feedback, it seems that most complaints are about something else entirely: the details on equalities, which account for the last five pages of the form. People resent those questions, it seems, because they’re not really part of the process at all – and the questions are consequently seen as intrusive, in a way that the earlier questions are not. People should be able to bury their mother without having to tell a government agency that they’re gay.
A study from Denmark has put into question the effectiveness of wearing a mask. It’s based on a randomised control trial of 6024 people, assigned either to a mask-wearing group or a control group that didn’t wear a mask. 42 people who wore masks, and 52 people who did not, contracted Covid during the test period. The study notes that “the findings are inconclusive, with CIs [confidence intervals) compatible with a 46% decrease to a 23% increase in infection.” Prof. Carl Henegan, writing for the Spectator, has seized on this as proof that any effect masks have is small. (The Spectator, of course, has serial form in seeking to belittle or deny the seriousness of the disease.)
The problem with that conclusion (or the lack of it) is that the Danish study has not actually tested whether masks are doing what they’re supposed to do, which is to slow the rate of infection. The graphic which follows, from the New Jersey Department of Environmental Protection, explains what should happen. The control trial has been looking at people on the top two lines – putatively, groups at higher risk. The distinction between the higher and lower risk (lines 1-2 and 3-4) depend on people who are infectious wearing masks to stop the spread. There are claims on the web that the risk on line 1 is 90%, the risk on line 2 is 70%. I don’t know whether those numbers are well founded, but if they are right, the expected values from 94 cases would be 41 masked cases (42 actual) and 53 unmasked cases (52 actual), which is bang on the nose. The claim that the risk of transmission reduces to 5% on line 3 is potentially far more important, but Danmask-19 can tell us nothing about that. Whatever the true figures may be, the risk of transmission is not the subject of the control trial.
The Twitter-sphere is full of misinformation about the judgement of the Equality and Human Rights Commission about the Labour Party’s conduct towards Jews. There are two rather serious misunderstandings doing the rounds. The first is the mistaken claim that “the EHRC did not find that Labour was institutionally antisemitic”. Here is an example, ‘liked’ by more than 1500 people :
EHRC Conclusions: Labour improves its handling of antisemitism
— Ben (@BenJolly9) October 29, 2020
The EHRC report does not refer to ‘institutional racism’ at all. However, the report does specifically and directly confine itself to actions which can be said to have been the responsibility of the Labour Party, as a collective organisation. The methodology is explained in Annex 3. It follows that report’s finding of unlawful conduct is, precisely, a finding against the Labour Party as an institution. So yes, the Labour Party has been found guilty of institutional racism.
The second claim, as expressed by serial provocateur Chris Williamson, is based in a related misunderstanding: that “Despite cries about ‘institutional anti-Semitism’ and an ‘existential threat to British Jews’, the EHRC based its report on a tiny sample of 70 complaints made over a three-year period. It only found two examples of supposed ‘unlawful harassment’ – out of half a million members.” The report did not look at the conduct of members (let alone that of former members such as Mr Williamson). The actions of individuals, former members, and members communicating to other members in an individual capacity, were expressly excluded from the scope of the inquiry (p 127). What the EHRC was looking for was something different: actions which could legitimately be said to be conduct of the Labour Party, rather than of individuals. And that is what the report has condemned.
I think there is some cause for regret here. The report’s careful and measured tone doesn’t really get the point over to people who have convinced themselves, over a period of years, that the accusations of racism were fabricated – an allegation that is racist in itself. There are references in the report to the suggestion that complaints about racism were ‘smears’ – that was a major part of the two examples of institutional harassment – but there is not the warning that was needed to explain to people that if they continued to maintain that position, it would amount to further harassment. The EHRC needed to say it in terms.
Neil Couling, the ‘Director General’ of Universal Credit and the Senior Responsible Officer accountable to Parliament, has a long track record of denying what everyone else can see. In 2012, he was the one who claimed that there were no targets for conditionality and sanctions, despite the detailed evidence provided by the PCS and Guardian. In 2013, he fronted the UC Full Business Case, where he wrote that
This Business Case clearly demonstrates that Universal Credit provides value for money and huge benefits for claimants, the broader population and the economy as a whole. Some of the most compelling aspects of Universal Credit are also highlighted here: the £2bn total cost of investment against a social return to the economy of £34bn over ten years; and an increase of people in employment of 200k.
The National Audit Office expressed its doubts, as well it might; there was no evidence to back up those claims.
This year, it fell to Couling and his colleagues to defend the DWP’s perverse practice of pretending that there were no bank holidays. LJ Rose, for the Court of Appeal commented:
Mr Couling’s evidence is that as at the date of his statement in September 2018 the universal credit IT system had cost £1.3 billion to build and the estimate was it would need another £1 billion to finish the task. Any additional adjustments would increase this cost. Building another calculator to allow the amendment of assessment periods would, he says, require a complete rebuild, therefore substantially increasing the cost to the taxpayer by at least many hundreds of millions of pounds. … Taking full account of all the SSWP’s evidence … I cannot accept that the programme cannot be modified … This case is, in my judgment, one of the rare instances where the SSWP’s refusal to put in place a solution to this very specific problem is so irrational that I have concluded that … no reasonable SSWP would have struck the balance in that way.
And now we have the latest report of the House of Commons Work and Pensions Committee, which takes Mr Couling to task over several points. First, he wanted to deny that people on UC were falling behind on their rent.
“When asked about the comparison between arrears, in Universal Credit and the legacy system, Neil Couling, the Senior Responsible Owner for Universal Credit, said that it was not possible for him to create a counterfactual” (pp 14-5)
Then he wanted to deny that the DWP had failed to provide the recommended support mechanisms for vulnerable claimants:
“We cannot agree with the assertion made by Neil Couling, Senior Responsible Owner for Universal Credit, that the Department is currently providing a “de facto Universal Support”. ( p 46)
And he also wanted to claim that UC was not slower to deliver benefits for people with disabilities than other benefits have been:
the NAO found that, while 84% of claims from people receiving Personal Independence Payment (PIP) and Disability Living Allowance (DLA) were paid the core elements of their Universal Credit claim on time, only 75% of claims were paid in full and on time. … Neil Couling told us that the data on whether disabled claimants are paid in full and on time can “overstate” the degree of lateness … He told us : “Some of the lateness is artificially created by the way in which we are forced to collect the data, which is much better than the legacy system, I am hastening to add …” (p 53)
There is a pattern of behaviour here. The Public Accounts Committee reported in 2018, after it had received evidence from Mr Couling and his most senior colleague, that
The Department’s systemic culture of denial and defensiveness in the face of any adverse evidence presented by others is a significant risk to the programme.
I am less concerned about the risks to UC, which has never been able to live up to its sales pitch, than I am with the effect on claimants. The impact of cumulative delays, restrictive conditions, sanctions, an over-reliance on technological wizardry, debt and the devastating removal of minimum entitlements, has subjected millions of people to privation. But it doesn’t help to be told that none of this is happening.
I had accepted, eighteen months, that European citizenship was ‘a promise that will never be kept”. I’m disappointed, but not surprised, by a judgment in the French Cours de Cassation that dismisses the rights of British expatriates in France as “inopérants” – ceasing to apply on the UK’s departure from the EU. Steve Peers, a Professor of EU Law at the University of Essex, has consistently argued that this would be the case.
Why did I think differently? I’d point to four reasons, none of which has been persuasive to lawyers. First, there was the Charter of Fundamental Rights of the European Union, the promise by the EU to its citizens that their rights were ‘fundamental’. ‘Fundamental’ rights don’t disappear because a member state removes itself from the consideration; only membership rights do that. Second, there was precedent – when Greenland left the European Community, the rights of its citizens were preserved on request. Third, there was what I had understood about the nature of European citizenship. This comes from Wheare’s classic work on Federal government (OUP, 1946). A federation, he explains, is:
“an association of states so organised that powers are divided between a general government which in certain matters … is independent of the governments of the associated states, and on the other hand, state governments which in certain matters are, in their turn, independent of the general government. This involves, as a necessary consequence, that general and regional governments both operate directly upon the people; each citizen is subject to two governments.”
That describes the structure of the European Union precisely – apart, it now seems, from the last seven words.
Lastly, there was the description of European citizenship in the Treaties, which said that EU citizenship was ‘additional’ to citizenship in a member state, and does not replace it. There is an ambiguity here. In the French version of the treaties, the wording is this:
Est citoyen de l’Union toute personne ayant la nationalité d’un État membre. La citoyenneté de l’Union s’ajoute à la citoyenneté nationale et ne la remplace pas.
S’ajouter can be read here as ‘attached’ or ‘supplementary to’, and that, it seems, is how it’s been read in France. A “supplementary” citizenship seems to me to offer much less than an “additional” one.
I think there’s room to cavil about this, because if the term ‘supplementary’ was intended, it could have been said – and if the clause meant that European citizenship was supplementary, the last part, that it would not replace nationality of a member state, clarifies nothing, and could have no meaning or effect. The caveat only makes sense if European citizenship was being considered as a form of citizenship in its own right. I have no choice but to bow to the decision, but I persist in thinking of this as a promise broken.
The Poverty Alliance hosted a session yesterday prompted by Mary O’Hara’s book, The shame game: overturning the toxic poverty narrative. It’s a powerful and very readable book, notably strengthened by her personal reflections. I’d part company with her argument, however, right at the end, where she suggests that the central task is to challenge and overturn the ‘toxic narrative’. Nor do I share the confidence of Nat Kendall-Taylor, the second speaker at the session, that the task is to find better ways of communicating, because we’re better at it than we used to be.
My own work on stigma was done nearly forty years ago – it was the subject of my doctoral thesis, and my first book. The stigma of poverty is deeply entrenched in our society, and in many others. The moral condemnation of the poor didn’t begin with austerity, or Thatcher, or Reagan; modern politicians have simply mobilised and endorsed prejudices that have been there, literally, for centuries. The stigma of poverty is also reinforced by a broad set of overlapping stigmas – such as the rejection of dependency, disability, mental illness and class. In the course of my work, I came to think that this was not so much a matter of discourse, as a reflection of something much deeper. It’s hard to explain the association of poverty with immorality and dirt in purely rational terms. If anyone out there is interested, my book, Stigma and social welfare, is freely available on my open access page.
It follows that I don’t think that challenging the narrative – a strategy which has been tried repeatedly since at least the 1930s – is likely to be effective in eradicating age-old prejudices. If we look at what is effective instead, I’d argue that the policies which have worked best have not been directly concerned with poverty at all. For example, we’ve largely taken health care out of the picture; we don’t criticise the poor recipients of health care for their dependency. The same is true of the beneficiaries of primary education, libraries, buses and sanitation. State Pensions and Child Benefit are very effective at helping people who are poor, but they’re understood in different terms. The least stigmatising policies have been aimed, not at the poorest, but at the welfare of everyone.
Policy Press have contacted me to say that three of my books are now available on their online service, Policy Press Scholarship online. This is subscribed to by many institutions – I have access by way of the National Library of Scotland. The books are, in order of publication, Reclaiming Individualism (2013), Thinking Collectively (2019) and The Poverty of Nations (2020).
If the books were being written now, I’d need of course to take account of the current pandemic; but oddly, there’s little in the intellectual content that would need to be changed. In Thinking collectively, I review a range of moral arguments for collective action, and competing conceptions of the ‘common good’. The common good might be understood as the sum of particular interests, such as economic development; on interests which are shared with other people, like the arguments for clean water; on interests which we share as members of a collectivity, such as defence or foreign policy; and, beyond that, the process of collective action, such as democratic participation. The response to Covid-19 is – or should be – an example of aiming for the common good in every sense.
Arguments for ‘sovereignty’ are prominent in several disputes, around the world. For many of the governments using the word, notably China and the UK, ‘sovereignty’ seems to be about independence and the absence of foreign interference. The term has been used for centuries in international law, apparently going back to the Peace of Westphalia in 1648, which ended the Thirty Years War. In that narrow context, a sovereign state has exclusive authority within its territory. But sovereignty means much more than that. A study of the Westphalian peace (D Croxton, 1999, The Peace of Westphalia of 1648 and the Origins of Sovereignty, International History Review 21(3)) brings together some helpful explanations of the term: sovereignty is
‘the idea that there is a final and absolute political authority in the political community … and no final and absolute authority exists elsewhere’ … By this definition, ‘sovereignty is not a fact. Authority and power are facts …[Sovereignty] is an assumption about authority.’ Hence, as John Ruggie states, sovereignty ‘signifies a form of legitimation’.
Exactly the same principle applies to domestic law. The legal theorist John Austin argued that
Every positive law, or every law strictly so called, is set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.
There are reservations to make about both these presentations, but it is important to draw out what they have in common. All of these explanations of sovereignty are concerned with legitimacy. The ‘sovereign’, whoever or whatever that may be, is the source of legitimate authority. If legitimate authority springs from a particular source, it follows that
- a sovereign government can make laws
- a sovereign government can make treaties, and
- a sovereign government can act collectively to exercise authority within its legitimate sphere of influence.
The first reservation to make is that sovereign authority is not ‘final’. Sovereignty is where authority starts, not necessarily where it finishes. We know, when a sovereign body makes laws, that they are laws – that they satisfy what Hart called “rules of recognition” (how we know that a rule counts as law) and “rules of change” (how we know that new rules have been created, or abolished, or added to). But after the sovereign has acted as the fount of authority, others may draw on that legitimate authority in their turn – e.g., the laws passed by devolved administrations, or the extensive use of statutory instruments in social security. The second reservation is that sovereign authority is not “supreme” authority, because it may well be subject to other authority in turn. The US constitution divides authority between a range of actors. Parliament is sovereign, but Parliament can be voted out. In modern states, the courts usually have the power to review whether actions are legitimate. Nor is sovereignty necessarily ‘exclusive’. Many states share sovereignty internally – in federations, between states and the federal government – or externally, which is the position of the European Union.
And so to the dispute between the UK and the European Union. The EU is not simply the product of a set of treaties: it is a body that makes laws, independently of the legal systems of the Member States. That means that every member of the European Union shares sovereignty with the Union. There have been some legal challenges to this principle – most recently in Germany, where it was successfully argued that German Basic Law takes priority – but the central premise, that EU law has a direct effect on governments and citizens within the EU’s areas of exclusive competence, has been established for nearly sixty years. It is correct, then, to say that the members of the EU have given up some sovereignty to become part of the Union; and it is also correct to say that the UK, on leaving the EU, will be able to act as a sovereign state.
Clause 38 of the UK Act on the agreement states:
It is recognised that the Parliament of the United Kingdom is sovereign. … nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.
Nothing in that was incompatible with the Withdrawal Agreement, or likely to give the EU pause. It is simply a statement that the Parliament of the United Kingdom is the primary source of legitimate authority for UK legislation: to which the obvious response is, of course it is. The EU was relying on that legitimate authority to be used to resolve the terms of withdrawal.
What the clause doesn’t say is that the EU has no authority to act. It doesn’t say, either directly or indirectly, that the EU can have no influence in decisions made by the UK government. It does not say that the UK is not to be bound by the Withdrawal Agreement, its most recent treaty with the EU. In short, the assertion of sovereignty simply doesn’t mean what some of the most ardent Brexiters wish it to mean.
The central fallacy behind the strategy of ‘austerity’, so-called, was the assertion that the deficit had to be made up by cutting public expenditure. The policy was built on two key mistakes: that the deficit was something that mattered in itself, and that the belief that cutting public spending would make the books balance. Governments can’t cut their way out of a slump, because the very process of cutting increases the size of the hole the economy has to fill. The argument for paying off the debts incurred during the pandemic is open to the same objection: now is not the time to take money out of the economy.
There seems to be a general consensus, on both right and left, that tax rises would make our economic situation even worse. It’s generally true that tax takes money out of the economy, and that’s not what we ought to do when the economy is depressed. The same is true, of course, of cuts to public services, which are not just bad economics, but bad for well-being.
Does it follow, however, that tax rises have to be avoided? I think that has to depend on what kind of tax rises they are. One of the peculiarities of the way we’ve come to record ‘public spending’ in the accounts is the treatment of every form of expenditure as if it all had the same kind of effect on the economy. When people are taxed, money is taken out of the economy; when people receive benefits, money is put back in; and so, it seems, the two sides of the process have different effects on economic activity. If we look at the finance of benefits, however, we find that there is a direct relationship between tax and spending, and that in some cases it makes no visible difference to the performance of the economy. The National Insurance Fund, which took in £109bn in 2019, is an example. State pensions aren’t, properly speaking, a form of ‘expenditure’ at all. They’re a transfer payment: money is taken from one group of people (workers) to move to another (pensioners). If there are any economic implications of a transfer payment, it has to do with the possibility that the two groups will treat the money differently – they may have different patterns of spending and saving. However, the initial assumption has to be that, unless there are reasons to the contrary, transfer payments are economically neutral.
That implies, in turn, that there are different implications of raising different types of tax, depending on the use that the money is put to. Some tax which represents a withdrawal from the economy, and some other tax doesn’t, because the same money goes straight back in to the economy in the form of a transfer payment. The objection to raising taxation, that it will take money out of a depressed economy, only belongs to the taxation in the first category. If taxation is increased to pay for benefits, the same doesn’t apply. There may be other objections to doing that – though some of the objections, such as arguments around incentives for very highly paid people, are pretty iffy – but the effect on the economic activity overall wouldn’t be one of them.
The implication is that taxation can be used directly for redistribution without any evident damage to the economy. If, for example, we want to increase taxation to pay for the pensions, the costs of social care, benefits for disability or Child Benefit (which was developed from a combination of benefits with tax reliefs), we should be able to do that. By extension, it should also be possible to pay for some services, providing only that there is a direct equivalence between transfers (for example, wages) and the level of tax raised.
So – why don’t we do that? There are many political objections which defend established rights to property, which is at least a moral principle, even if it is one that I disagree with. By contrast, the economic arguments seem particularly thin. They are that the economy is too complex to be tampered with, and there may be unexpected effects (the argument made by Hayek); that public expenditure devalues the currency, an argument that is not applicable to transfer payments, because the amount of money they put in circulation is the same as the amount taken out; and that public expenditure needs to balance the books, which is probably wrong but doesn’t apply to transfer payments anyway.
There is one practical issue to consider, too, which is also a political obstacle: our public accounts don’t allow for it. We don’t have hypothecated taxation, which means that we can’t tie taxation to specific expenditure, and we don’t distinguish transfer payments from public expenditure used to pay for things. We can do things differently; these are conventions, and not very helpful ones. We should take transfer payments out of the public spending figures altogether, and account for them in their own right.
I have, at long last, my French passport. As I explained last year, I started the process of acquiring the information to obtain it in November 2016, five months after the referendum, and it has taken until now to get the thing into my hand. The importance is more than symbolic; it’s a European passport, and it carries the right to live and work in the EU. I had hoped, for example, that I might be able to work again in Poland. My state of health makes that unlikely, and in due course the suspension of reciprocal medical cover will present me with another hurdle to overcome. I am no less shocked by the loss of fundamental rights than I was four years ago, but my attempt to petition the European Parliament was waved aside, and I regret that I have only been able to mitigate this for myself.