The European constitution and the treaty

The European Union claims that the newly agreed treaty is not a revival of the abortive proposal to establish a constitution. A House of Commons Select Committee has complained that the new treaty has most of the same elements as the old, rejected one. They are both right.

The abortive attempt to establish a European constitution might be seen as a fundamental criticism of the character of the EU. I suspect the reasons for the treaty’s rejection in referenda is more pedestrian. The responsible committee, chaired by Valery Giscard d’Estaing, made a thoroughgoing hash of it, being unable to select the principles that mattered, and trying to include every aspect of EU policy. Even for those who (like myself) support the principles of the European Union, it was a thoroughly uninspiring document. The procedures for the French referendum made made the full document available to everyone – and the document, which is as hard to read as a telephone book, was unlikely to win any friends.

A constitution is a foundational statement. It needs to be communicative, transparent, and justiciable. Every constitution needs to set out the basic institutional framework. It needs to state primary legal rules – rules of recognition, change and adjudication. It should probably state fundamental principles, like the Bill of Rights in the US constitution. But it should not include policy. Instead of confining itself to constitutional issues, the “constitutional treaty” sought both to consolidate the content of previous treaties and to include substantial elements of previously agreed policy – issues like the environment, agriculture and fisheries, and commercial rules. However important these may be, they are not constitutional principles; and whatever the merits of the policies may be, it is very questionable whether the policy which is appropriate now should be expected to be appropriate a hundred years from now. More than nine-tenths of the constitutional treaty was clutter – although it may have contained important policy decisions, it should not have been in a proposed constitution at all.

At the same time, the constitutional treaty included many issues on which there were new agreements. Some of those agreements were fundamental, like agreements on the principle qualified majority voting. Some were not, such as the specific designation of voting arrangements in respect of different policy fields. The member states and the Commission are reluctant to lose sight of the areas they agreed; and so the proposals have been revived in the new treaty. In other words, the new treaty is largely made up of the clutter that should never have been in the proposed constitution. The new treaty does duplicate the constitutional proposals – but it is not a constitution.

Europe still needs a constitution – the specification of institutions, primary rules and basic principles. This treaty is not it. One has to hope that eventually, proposals will be made for a genuine, effective constitution – but it has to be done without elevating every policy area in the EU to the level of fundamental principle. As a modest proposal, there needs to be a word limit. The constitution should not be longer than ten pages; there should not be more than about seventy five clauses. It needs to be served up in plain language. Then, perhaps, it might be worth voting for.

Inheritance tax

Recent political debate in the UK has been seized by an abstruse discussion of the merits of inheritance tax. Politicians have been wrong-footed; no-one, it seems, can remember what the tax is for, which makes it rather difficult to justify.

There are four main arguments for taxing people on legacies.

  1. Inheritance tax is highly progressive. It is solely related to ability to pay.
  2. The capital gains on a person’s principal residence property are untaxed while someone lives there, and finally realised only when when they do not; death and probate are the best time to tax. Other property which is held would have been subject to capital gains tax.
  3. Both the capital gain on property, and the legacy made after it, are unearned windfalls. The taxation of legacies is unrelated to economic incentives.
  4. The persistence of inherited wealth across several generations is one of the major sources of inequality in the UK.Inheritance tax breaks the link.

The case against inheritance tax is that

  • People’s holdings have been taxed once already. This is largely untrue. The principal source of wealth in the UK is not holdings derived directly from income, but real property; the main reason why large numbers of estates have been brought into the tax bracket is the increase in house prices.
  • People have an aspiration to pass their goods to their children. They may have, but that is possible only if they have children. There are no criteria to distinguish family legacies from others.
  • Inheritance tax is inequitable. The taxation of residences leads to inequities when people who share the residence are required to pay tax from capital they cannot realise directly.

Only the final criticism has major substance – but none of the current proposals attempts to deal with it.

The law of rape

The Scottish Government have announced legislative proposals to reform the law of rape. In particular, they intend to make it inadmissible in court to raise the issue of whether a women was drunk. The problem with rape trials is that they often become trials of the victims rather than of the perpetrators; this proposal is a small step to help with that problem.

It is only, however, a very small step. The central problem with the law of rape is that the definition of the offence depends on the issue of consent, and so on the state of mind of the victim, rather than the actions of the perpetrator. As long as that remains true, it is inevitable that the victims will be put on trial. And the recent proposals to investigate rape as if it was murder will only make things worse: a more extended, detailed, thoroughgoing investigation and legal process will bend most victims until they crack.

There is an alternative. Rape is only part of a general class of serious sexual assaults. Many are at least as bad as rape. (This comment is likely to surprise people who think that rape means “very bad”, but some of these other actions are much worse, even if they typically carry a lesser sentence than rape itself. Unfortunately, I cannot explain the comment fully in a public forum – they are so appalling that I am not prepared to describe them explicitly. I can only suggest that people consult a law book and see what sort of thing is classed as “indecent assault”.) If the nature of the offence was redefined in terms of the general class of assaults, the issue to be considered in court should be whether or not the actions of the perpetrator (male or female) fell into that class – and, regardless of consent, physical evidence of force would stand as evidence of such assault.

Reforming health services in Scotland: A&E in Monklands and Ayr

The NHS in Scotland has been blighted by creeping centralisation. Hospital services have been progressively been sucked into the large, university-based hospitals in the major cities. The result has been growing problems with accessibility and equity, and a sense of alienation from the population that these hospitals serve. People do not simply want the best medical care possible – especially not if if means they have to travel away from their communities and their families in order to receive it. There are now many parts of Scotland where there is no cover on evenings and weekends, and over an hour’s travelling is needed to get help. Health care is all about social protection, and the first, basic rule is to make sure that people are covered when they need it. The resistance to the closure of Accident and Emergency (A&E) facilities in Monklands and Ayr is symptomatic of this. The understandable fear that people have is that the services will not be there when they need them, and they will have to travel long distances to get essential cover. One of the first actions of the new SNP executive has been to refer the issue back to the health boards for reconsideration.

The reform of A&E is not, however, just another example of centralisation. On the contrary, the development of A&E is itself an example of over-centralisation – formed in the belief that a unit can only function adequately if it has a critical mass, and all the bells and whistles that might be needed. The current arrangements don’t work – it’s not very long since A&E in Lanarkshire was virtually overwhelmed by the number of people reporting with a respiratory virus.

The Kerr report, Building a health service fit for the future,  argues that the problems of A&E can be dealt with by more decentralised, local services. The report makes a crucial distinction between Casualty and Emergency services. Kerr proposes a network of casualty units, each with the capacity to deal with lesser injuries and to stabilise life-threatening conditions. Kerr suggested that “as a rule of thumb, each current hospital offering A&E services should be able to sustain services for urgent care.” Emergency services, by contrast, will be more specialised, typically serving about a quarter of those who currently come into A&E.

The NHS boards in Lanarkshire and Ayrshire and Arran proposed, in line with the Kerr report, to replace A&E with a split between Casualty and Emergency units. In Lanarkshire, the plan would have increased the number of units dealing with casualities from three to five, with new units in Cumbernauld and Lanark. These 5 units were to cover 70%-80% of the load currently done in three places. Each, then, wouldl have only half the load of current A&E provision. Two further Emergency units, at Hairmyres and Wishaw, were to act as specialised backup. A&E in Monklands was to be downgraded – not closed – as part of a process which would have redistributed staff and facilities across seven units in five locations. The same pattern was proposed by NHS Ayrshire and Arran. Instead of two A&E departments there were to be five causalty departments and one emergency unit. A&E in Ayr would therefore be downgraded.

The purpose of these plans was to make services more local, less centralised, more accessible and much less overburdened. That is what people are now opposing. An attempt to decentralise is at risk of unravelling because of a demand to keep things as they are.

Rationing Herceptin

The announcement that Herceptin (the brand name of trastuzumab) has been approved for early stage breast cancer has also been accompanied by fears that it will cost the NHS about £100 million, on the assumption that it will be routinely prescribed in cases where women have early stage breast cancer. On a recent court case, a women took her health authority to court for refusing to prescribe the drug prior to its approval by NICE, the National Institute for Clinical Excellence. She was convinced that not receiving the drug was tantamount to a death sentence, and she made several emotive appeals to the press. The Secretary of State for Health intervene to direct that she should receive the drug.

This has been seen as an argument about rationing, finance and costs. I’m not convinced that it is about rationing at all. The first issue it raises concerns the process of approval. In some countries, doctors are able to prescribe drugs fairly freely. In France, prescriptions or licensed drugs are permitted unless the drug has been entered on a list of “références medicales opposables”. In the UK, the opposite is true; doctors are unable to prescribe drugs on the NHS until they have been approved for use. The rationale for limiting prescriptions reflects fears that the information available to doctors is partial, and unduly influenced by the pharmaceutical companies.

In the case of Herceptin, there have been some disturbingly misleading reports – including one in the New England Journal of Medicine, which really ought to know better. The article examining the use of the drug (1) suggested that using it in the early stages had reduced the recurrence of breast cancer by “approximately 50%”, and the journal editorial took that on trust. The numbers in the article are not clearly stated, and they seem to be different in different tables, but nearly 1700 women received trastuzumab for a year, and a roughly equal number did not. 127 women receiving the drug had a recurrence of their cancer, and 220 in the other group had recurring cancer – an improvement, on the face of the matter, for 42% of the treatment group, not “approximately 50%”. Crudely put, 93 people, or less than one person in 18, seemed to benefit. What also needs to be mentioned is that 84 patients receiving the medication were taken off it or withdrew because of ill effects, and that 29 people suffered symptomatic congestive heart failure. What we seem to have, then, is a drug which is potentially beneficial for a few people, potentially harmful for a few others, and makes little difference to most. This kind of profile is not particularly exceptional.

The key problem for the NHS rests in the finding that some people are significantly worse off as a result of receiving the drug. When the NHS approves a drug, it doesn’t just go to one person; it goes to hundreds, and sometimes thousands. What risk is acceptable to improve the circumstances of some people, at the cost of danger to others? This is not a simple question of mathematics, and there is no numerical answer. The moral responsibility of the NHS is to do as much as it can to ensure that the benefits go to the people who need it, and that the dangers for others are minimized. There are more people who benefit that who suffer, which is encouraging, but not good enough. The normal procedure would be to use the results of successive tests gradually to refine the definition of the potential recipient group, so that it is used most appropriately for people who stand to benefit, and avoided for those who are most at risk. That is what the procedures for testing and trial are supposed to do; and that is what the political intervention has stopped. The first duty of any medical service lies in he principle primum non nocere, “first do no harm”. This, not the money, is what is at risk.

Note 1. M Piccart-Gebhart et al, Trastuzumab after adjuvant chemotherapy in HER2- Positive Breast Cancer, new England Journal of Medicine 2005 353:1659-1672

The Farepak scandal

First things first. If I ask a cobbler to repair my shoes, and he goes bankrupt while my shoes are in the shop, the bailiffs have no right to take my shoes away. They are still my shoes, and I can l get them back. If I give money to a lawyer to pay for a house, it does not become the lawyer’s money; it will sit in a separate account. If I give money to a bank to safeguard, the bank does not become the owner of my money. I am their customer for the service I am receiving, and may be liable for charges or a charge against the interest, but it is still my money.

The Farepak scandal happened when a saving club went bankrupt. About £40m in savings were lost. Farepak’s bank, HBOS (Halifax Bank of Scotland), was able to recover about £35m of debts owed to it by Farepak. The “customers” have lost everything.

Something is seriously wrong here. The people who saved money with Farepak might be regarded either as depositors, or as customers. If they are depositors, the money recovered by HBOS still belongs to them. Irrespective of how Farepak ordered its accounts, the bank has actually recovered its losses from their money, and the bank is liable to restore it. If, by contrast, they are customers, and their “saving” was in fact payment by instalment for a service to be rendered, the situation is legally different – they become creditors, like others including the bank. The bank has acted legitimately, even if it might be thought to have taken advantage of the situation to recover assets before others could act.

This situation is still questionable, however. One has to ask whether the position of the unfortunate customer is morally equivalent to that of a lender or an investor, both of whom offer capital on the basis that there will be a return on their risk. Lenders and investors knowingly take a chance, and gauge the rate of return in that light. The customer, by contrast, is not engaged in risk-taking. That seems to me to imply, in the settlement of debts, an order of priority. The restoration of bailed goods and money should have priority over the repayment of loans. The “customers” should receive the £35m recovered by the bank. If the law does not say so, the law should be changed.

Additional note, July 2013. In 2013, the decision was taken to pay Farepak’s customers 50p in the pound. This followed a legal case where Mr Justice Smith commented: “This is not a court of morality but I would suggest that HBOS really ought to seriously consider whether or not they ought to make a further substantial payment to the compensation fund.”

The American ideology

Somehow or other, people in the US seem to have convinced themselves that they are individualists. Everyone is out for themselves, people have no responsibility to each other, and everything that is social is immoral. Like many myths, this view of the world has the capacity to become self-fulfilling. The quality of public life in the US – the physical structure of towns, the condition of public roads, the absence of transport – is appalling. The world looked on with horror when, after Hurricane Katrina, the world’s richest nation abandoned its poor, its disadvantaged and dispossessed and blamed them for not making their own arrangements.

There is, though, another USA. There is a USA where people live in families and neighborhoods, where people go to school with other people, where they worship collectively and give to charity. The word for this kind of behaviour, in Europe, is “solidarity”. People are in relationships of solidarity when they accept responsibility for each other. There are many Americans who are not part of patterns of solidarity – who are excluded. But most are not. The US seem torn between an image of its itself as a frontier populated by isolated individuals, and the reality that people experience day to day.

Most of the people I have talked to from the US seem to fall immediately into talking about state action. People are either “liberal”, by which critics seem to mean “interventionist” (the term in the UK means the opposite), or “conservative”. These positions are mainly defined in terms of how much state intervention there should be. The test for America is not how to build a welfare state, or even how to develop social welfare by other means. It is how to use the solidarities which exist effectively, for the benefit of its citizens.

The European social model has grown as a way of developing the links between disparate communities and traditions, and it might just be extendable to another rich, highly complex, culturally diverse, nation. The model is based on three core elements. The first is the development of solidarity – developing the things that tie people together, like family, community and culture. The second is the extension of solidarity, making sure that people have the opportunity to be part of solidaristic networks. And the third is the process of social inclusion, making sure that people who are excluded are brought into the net through a combination of obligation and rights. The idea of an “inclusive America” – a phrase once used by Pope John Paul II – has been raised by some religious and racial groups; but if anyone, either Democrat or Republican, was talking about this in the recent elections, I missed it.

Obesity and sport

The problem of obesity is seen largely as a problem of nutrition and exercise. (There may be other contributory causes, such as sleep deprivation or the controlled temperature in heating systems, but this is still a reasonable generalisation.) Whenever exercise is mentioned, however, it is likely to be transmuted into “sport” in general, and competitive sports in particular. In several cases, absurdly, this has even been cited in support of Britain’s Olympic aspirations, as if sitting watching the Olympics with a pack of lager cans was going to inspire our transformation into leaner, fitter citizens. The sports lobby has kidnapped the idea of exercise, which is being held prisoner in a suburban room somewhere while an impostor takes its place. “Sport” is not the same thing as “exercise”, and even if sports are a way of exercising, they are not usually the best way.

An active lifestyle should mean that people are active across a wide range of ages, personal and social circumstances. Most people who have active lives do so through a variety of physical activities. The Scottish Health Survey classifies exercise for children in four categories – sport and exercise, walking, active play, and gardening and housework. Exercise for adults is mainly classified as home activity (including gardening, housework and DIY), work activity, and sport and exercise.  In relation to all categories, “sports and exercise” is at best a contributory factor – not the main one.

Within the category of “sport and exercise”, the role of “sport” itself is limited. Exercise includes walking and non-sporting activity such as dancing. “Sport” is fairly generally defined, including e.,g. swimming and jogging. Competitive sport and games are a residual part of exercise within the category of “sport”, and a tiny part of exercise overall. Engagement in sport is highest among young males; it is much less important for females, and it declines rapidly in importance with age, Team games are largely beside the point. If we want a fit, active lifestyle, encouraging walking and gardening are much more relevant than getting people to play football or rugby. Whether or not schools need a football pitch, they do need a garden more.

If it were just a question of not recognising what most exercise is like, there would be a case for doing sport as well as exercise. But that’s not the only issue. The culture of sport in schools, and particularly of team games, is profoundly alienating. Most schools in Scotland suffer from the dominance of football in the playground, where a few more competent boys participate, and the rest of the children are relegated to the corners of the open space. The obsession with competitive games leads to people avoiding physical activity. Sport, then, is part of the problem rather than part of the solution.


Climate change

The Stern review on the economics of climate change presents an argument for preventative action, intended to stop the world from getting warmer. I don’t have the scientific background to judge whether or not the arguments about global warming are justified, or whether the predictions in the report are accurate. But I can tell that the proposals in the Stern report don’t follow from the analysis of the problems.

Assuming that Stern is right about the problems, the first question to ask is whether mitigation will work. The analysis in the report depends on the idea that there is a critical range of carbon emissions. If carbon emissions continue at more than that level, the situation will continue to worsen. If they reach that range, they might stop. I say “might”, because that is as far as Stern is ready to go. The estimates he cites suggest a probability of up to one in five that even if the reduction falls well below that range, the global temperature will still increase by 3 degrees – enough, according to the report, to displace 150 million people, and to put up to 500 million people at risk of starvation. What we are being offered, then, is a preventative approach that may not have any effect at all.

The second problem is that even if prevention is possible, it requires the cooperation of every nation. Stern is clear that any measure that fails to engage most of the world’s economies will fail to mitigate global warming. To justify any major investment on the part of a single country, we need to know that that nation’s contribution would make a difference proportionate to its expenditure, or at least some difference. There is no indication that it would.

The third problem is that the solution that Stern proposes – a global market for carbon emissions – could make things worse. Countries in the process of development will be fettered; they can develop under constraints, or they can sell their rights, which offers a short-term return but traps them in dependency. The main way out of the dilemma will be to develop nuclear power – a paradigmatic case of the West willing the end while denying developing countries the means. Stern’s world will be underdeveloped, unjust, and dangerously unstable.

Stern’s central argument rests on the idea that prevention, or “mitigation”, of climate change is possible, and cheaper than “adaptation”, or trying to deal with the consequences. The cost of mitigation is about 1% of GDP per annum over fifty years. There is no real attempt to assess the cost of adaptation, and because Stern says very little about the process, it is difficult to know what the comparison is based on. Two criticisms have been made of Stern. One is that he does not discount adequately – he gives far too much weight to an uncertain future, counting future generations as worth nearly the same as present generations. Because future generations always outnumber the present, this kind of argument can always be used to show that prevention of unpredictable, remote events is worthwhile. The second problem is that he gives far too little weight to the poor, both now and in the future. Stern does accept that the poorest people will be hit first, and hit hardest. If Stern is right, there are major issues looming relating to water supply, agricultural production and the migration of 200 million deprived people. I do not know how much they will cost either, but a forty or fifty year programme of development, resettlement and relief could do a great deal to reduce the harm that the report foresees, and if the numbers of people are those outlined in the report, the money earmarked by Stern for “mitigation” should be more than enough to lift those people out of poverty. It might be prudent to start paying a little more attention to those issues now.

Further note, 1st April 2014:  I returned to this blog entry  following the publication of the IPCC’s draft report, snappily named WGII AR5.   I’m pleased to say that the IPCC have started, at last, to take ‘adaptation’ seriously.


Two parents?

What is a parent? Is it a biological relationship? Or is it someone who raises and nurtures a child? In the UK, we have tended to assume that the two things mean much the same.

  • People with a biological relationship are expected to take responsibility for their children; people whose relationship is social are not.
  • Someone can show they are a parent by a DNA test. They can show they are not a parent by a DNA test.
  • Where a biological father has nothing to do with a child, that parent can be pursued. Recently, this has been extended to cover anonymous sperm donors, who have been arraigned for child support.

There is nothing inevitable about the idea that parenthood is biological. In France, parenthood is understood in social, rather than biological terms. When a child is born, it can have no parents, one parent, or two. If the mother or father do not accept the child, the child will have only one parent. If both of them withdraw, the child is treated as having no parents, and may be adopted.

One of the central assumptions behind the structure of family law in the UK is that children have two parents. The norm is both an expectation, and a rule. Where it does not apply, it is treated as if it ought to apply. So,

  • When a couple separate or divorce, there is a general presumption that both partners will have access to the children. This applies not only for biological parents, but for subsequent partners, who may be able to establish rights of access.
  • Where a child has no parents, people who want to adopt are expected to be young couples – which means that most of the people who hope to adopt are not allowed to do so.

The assumptions behind these policies are increasingly questionable in practice. The first, and most obvious thing, to say about them is that many children do not have two parents. In a society where many children are born to unmarried couples, and many marriages end in divorce, they tend to have a relationship with one carer, rather than two. About 40% of all children do not see the absent partner at all two years after a divorce. The preoccupation with biology, the insistence that children must have two parents, and the under-estimation of social relationships, is at odds with experience. More importantly, they are often at odds with the interests of the children.

There is little prospect of bringing about a fundamental cultural change, and no prospect at all that a law modelled on the French idea could be implemented directly in the UK. But there are several principles we ought to consider. They would include

  • the acceptance that a child can have only one parent.
  • the consequent normalisation of adoption by single parents, or by one person within a couple. The central principle should be the child’s best interest, and it is not in a child’s best interest for there to be a custody battle when couples separate, and
  • the identification of parenthood as a social responsibility.

We need also to balance the position of children who have more than two people in parental roles – mainly through step families. The law has been gradually amended to recognise the importance of these relationships, and partners may have rights of access; but we should not be confusing those rights with the rights of parenthood.