How our government is dealing with refugees

It’s being reported that Serco, which is responsible for providing accommodation for asylum seekers, has given 300 people in Glasgow warning of immediate eviction. Eviction from residential property without notice used to be illegal, but in 1999 the Labour government amended the Protection from Eviction Act to exempt accommodation provided on these terms.  Govan Law Centre has starting legal proceedings based on Scottish common law.

3rd August.  I’ve amended the original post because Kim Long has given me permission to include her full comments on her recent work with her constituents.

The Supreme Court is considering the Continuity Bill

The Supreme Court has retired to consider their verdict about the Scottish Parliament’s Brexit Bill, which rejoices in the title of the “UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill”.   The Bill does its best to make it look as if it’s all really, really difficult.  The issues are said to be complicated. They’re not as complicated as they might seem at first.

The basic principle of devolution is straightforward.  All legal authority stems from a common source.  In many countries, that source would be the Constitution; in the UK, it’s Parliament (well, technically the “Crown in Parliament”, but it’s the same thing).  When Parliament is described as  “sovereign”, it doesn’t mean that Parliament holds all the power; it means that all legal authority flows from Parliament.  So whenever a lesser body exercises power – which might be, for example, a local authority, a government agency, a private prison or a devolved assembly – its authority has to be traceable back to the source.

What that means, for Scottish legislation, is that all legislation passed by the Scottish parliament has to pass a basic test: does the Scottish Parliament have the delegated authority to make that decision?  I raised this issue in relation to the powers of local government when Scotland introduced the Scottish Welfare Fund.  In England, local government was granted a power to promote welfare by the UK parliament.  In Scotland, the Scottish Parliament passed the same legislation in the same words – but it couldn’t mean the same thing, because the Scottish Parliament couldn’t grant powers it didn’t have.  That’s why the Scottish Government needed additional UK legislation before it could set up the Fund.

The same principle applies to any and all legislation passed by the Scottish Parliament.  The Scottish Parliament’s authority only extends to those areas where it has devolved authority, or ‘competence’.   If it were to pass any rule in general terms – like granting powers to promote welfare, requiring public authorities to offer interpretation in Gaelic or BSL, managing harbour traffic,  requiring licences for energy production or whatever – that rule could only be valid in so far as it related to the devolved powers of the Scottish Parliament, and invalid in so far as it related to anything else.  The Continuity Bill has been very careful to specify that this is the case, and that it only relates to matters of devolved competence: EU legislation is affected “if and to the extent that it makes provision that is (or would be, if it were contained in an Act of the Scottish Parliament) within the legislative competence of the Scottish Parliament.”

The legal principle at issue is so obvious and so fundamental that I’m ready to take a pop at predicting what the Supreme Court is going to say.  They’re going to say that Scotland has the power to make decisions when they have the power to make decisions, and that they don’t have the power to make decisions when they don’t.  Politically, this could be seen as a defeat or a victory on both sides, depending on what people were expecting.  But it’s not relevant that the UK government might prefer the Bill not to be considered yet; either the law is within the competence of the Scottish Parliament or it’s not.

The basic principle may not be complicated, but the Supreme Court’s judgment almost certainly will be.  They’ve established the dreadful practice of allowing each judge to issue a lengthy judgment that is different in tone, emphasis, content and specifics from each of the others, and then they pretend that they’ve reached a joint decision.  If you’re not confused  yet, you will be.

McVey’s vision is the wrong direction for benefits

In a speech to Reform, Esther McVey has outlined her vision of a reformed system of welfare benefits.    It is almost exactly the opposite of what I have argued for over the years, most recently in What’s wrong with social security benefits?  Ms McVey explains:

Our vision is one of a personalised benefit system, a digitised system.

Mine is for a system that is simple for claimants, less intrusive and less presumptuous.

We’re rolling 6 benefits into one, that means that people now have a better oversight of their income and can spend accordingly.

The government has produced a benefit which delivers an unpredictable outcome that is subject to change at very short notice.  Withdrawal of all the elements of benefit all at once invites catastrophe.

We are developing a personalised system that gives a 360 degree view of an individual’s needs to provide bespoke tailor-made support.

The government has developed a benefit which is too complex for the administrators to manage, or even to pay on time, and too complex for claimants to understand..  People can’t work out whether they’re entitled, what they’re entitled to, or when entitlement stops.

Part of the problem, of course, is the misplaced faith in technology to resolve complex  personal circumstances.  Part is the emphasis on employment, which is simply irrelevant to most of the projected population that the benefits are intended to serve.   But a larger part is the arrogance of a government department that assumes that it will be capable  of responding to complex situations if only it asks for more, processes more and does everything more thoroughly.    There are limits to what governments can do, and Ms McVey’s vision of a personalised, comprehensive digital system goes far beyond them.

Academic sources can’t be relied on

I’ve never been keen on the dominant style in conventional academic referencing, represented by Harvard or Vancouver – the notes generally appear as the author’s name stuffed in brackets with a date, such as “Marx, 1990”.  (That’s from a book I was looking at which is citing Das Kapital.  Karl Marx didn’t write very much in 1990, being dead, but we’re all supposed to know what it means.)   The notes often disguise the original source, which will appear on a different page, and lots of people will stuff a small reading list into a note to support points. I’m used to my own stuff being dragged in like that.  Whenever I write an academic paper, I’ll usually try to include arguments for, arguments against and my own conclusion.  That gives people the chance to find three contrasting opinions in most of the stuff I do, and I’m pretty much used by now to having all sorts of weird, ill-founded or obnoxious views attributed to me, from both left and right.  To take a small example, I’ve recently read an otherwise rather good article which cites my work on covert research, saying that covert research generally relies on deception.  That’s a fairly direct contradiction of what I do say.

Lots of academic writing seems to rely on sources to convey the necessary gravitas, but people can be a bit cavalier about the way that names are dropped.  I’ve just come across this, which seems to have been put together by pulling the names of likely contenders from a hat:

There is a long-standing problematisation of impoverished individuals subverting the basis of state or charitable support (Rousseau, 1762) and a strong conservative tradition of individualistic and behavioural understandings of poverty (Hobbes, 1651; Burke, 1790; Smith, 1776).

Rousseau, Hobbes and Burke’s Reflections (the 1790 reference) didn’t have much to say about state support for poverty, and it could be argued that Smith said the opposite.  It would have made more sense to refer to Joseph TownsendThomas Alcock or the traditions of the Poor Law.  The misattributions just get in the way of what is, otherwise, a very creditable and solid bit of empirical research.  Peer review is supposed to protect against this sort of thing, but frankly most peer reviewers won’t pick them up when they’re commenting – inaccurate referencing is hard to spot, and it’s almost never the main issue requiring comment.

 

 

The Brexit White Paper is out

The Brexit White Paper is strong on aspirations but weak on the detail of how to achieve them.  The paper refers repeatedly to “cooperation” (226 times) and to “new” arrangements (153).  There’s a long shopping list of fields of activity which will require specific negotiation.   The main proposal for mechanisms is to create an institutional framework, a governing body, a joint committee, and then sub-branches dealing with the specifics such as fishing, security, data protection and so forth.

While it’s fine to propose cooperation, every one of the areas considered is going to need negotiation and agreement of terms.  In most cases, the document does not say what those terms should be, only that the issue has to be discussed.   For example,

 the Government’s vision is for an economic partnership that includes:

  • … a new Facilitated Customs Arrangement
  • … new arrangements on services and digital
  • …  new economic and regulatory arrangements for financial services
  • … a new framework that respects the UK’s control of its borders …

The White Paper is blunt, however, on at least two points.  One concerns mobility, and the civil rights of EU citizens.  The UK is happy enough for Brits to live abroad but EU citizens will be restricted, with the main exception of easy-going tourist visas.  The other is fisheries, where the document states baldly that access to UK waters will have to be licensed and negotiated annually.

There is of course hardly anything the issues that matter most to ordinary people, such as residence or family law, where the most that is said is that something will have to be agreed.

Universal Credit still fails to deliver

The DWP has just released statistics that tell us that

83% of new claims to Universal Credit Full Service received full payment on time.
94% of new claims received full payment within 4 weeks of the payment due date.
97% of new claims received full payment within 8 weeks of the payment due date.

This is an improvement.  According to the NAO report, in 2017 a quarter of new claims were not paid on time, and in March it was 21%.  However, it’s still woefully sub-standard.  The DWP has five weeks to process claims; the complexity of the system means that many claimants have already suffered delays before they get that far; by this account, some of them will not have received payment within three months.

Is it possible to do it faster?  Supplementary Benefit, a complex benefit delivered to cover more than six million claims a year without the benefit of computers, used to have a target of 14 days.  The Conservative minister Linda Chalker told Parliament in March 1980:

I should like to say a few words about our intentions. Regulations will be made to put the supplementary benefit position broadly on a par with the similar provisions for national insurance … That means that benefit officers will be required to determine new and repeat claims as far as is practicable within 14 days of the time when they are in possession of all the information necessary to make a determination. I emphasise that, as my right hon. Friend said in Committee, the vast majority of new and repeat claims for supplementary benefit are cleared well within the 14-day period. But I accept that regulations along the lines that I propose will serve as a useful reminder of the need for speed in resolving claims.

 

What the UK government wants, and what the EU will agree to

There is very little practical difference between the position recently agreed by the UK Cabinet and the position adopted by the EU.  Putting the positions side by side, we find this.  (Everything in the table is a quotation from a public statement.)

UK Government position EU negotiating position
A common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods A framework for voluntary regulatory cooperation to encourage convergence of rules
Different arrangements for services, where it is in our interests to have regulatory flexibility, recognising the UK and the EU will not have current levels of access to each other’s markets. An open market for services, where companies from the other party have the right of establishment and market access to provide services under host state rules
A common rulebook on state aid, and establish cooperative arrangements between regulators on competition. Common ground on competition and state aid.
A joint institutional framework to provide for the consistent interpretation and application of UK-EU agreements by both parties. This would be done in the UK by UK courts, and in the EU by EU courts Adequate enforcement and dispute settlement mechanisms.
The phased introduction of a new Facilitated Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if a combined customs territory Customs cooperation to facilitate goods crossing the border

 

The main area of disagreement in that list concerns access for services, where it is almost certain that the UK government will give way – they cannot get UK access for financial services otherwise.

The high level of agreement does not, however, imply an easy resolution of the issues, because – yet again – the UK has largely failed to engage with the issues. The recent statement from the EU’s negotiating team identifies a host of priority issues where the UK has still not identified a position. They include:

  • access to public procurement markets
  • investments
  • intellectual property rights
  • coordination of social security
  • recognition of professional qualifications
  • guarantees against tax dumping
  • an air transport agreement, combined with aviation safety and security agreements.
  • participation in EU programmes, for instance in the field of research and innovation
  • rules on data protection and
  • social and environmental standards.

One might hope that the forthcoming White Paper will have something to say about these issues; but frankly, it should all have been laid out two years ago.

Europe’s negotiating position is remarkably reasonable and conciliatory.

From reports in the British press, it would be possible to imagine that the EU is being obstructive in its negotiations with the UK.  The UK is not permitted to “cherry pick”, but cherry picking – agreement point by point – is the root and essence of every trade agreement.  The Irish Taoseach  has also been reported as saying, provocatively, that the UK cannot be permitted to destroy the EU – how is that supposed to work? –  and that the UK cannot expect to be treated as an equal partner in negotiations.  Did anyone say that to Canada?

The real substance of the negotiation is rather different.  This is from a speech given at the end of April by Michel Barnier.

Even with the UK’s current red lines, our intention is to reach an ambitious and wide-ranging free trade agreement with:

  • Zero tariffs and no quantitative restrictions on goods;
  • Customs cooperation to facilitate goods crossing the border;
  • Rules to limit technical barriers to trade and protect food safety [sanitary and phytosanitary
    measures];
  • A framework for voluntary regulatory cooperation to encourage convergence of rules;
  • An open market for services, where companies from the other party have the right of establishment and market access to provide services under host state rules – I repeat, under host state rules;
  • Access to public procurement markets, investments and protection of intellectual property rights.

This comprehensive offer already reflects our high level of ambition for an FTA with the UK.  But we believe that our future economic relationship should go even further. Let me mention four points.

  1. First, in our future partnership we would like ambitious provisions on the movement of people, including related areas such as coordination of social security and the recognition of professional qualifications.
  2. Secondly, in addition to trade, we offer a socio-economic cooperation. For instance, we propose an air transport agreement, combined with aviation safety and security agreements. The UK could also participate in certain EU programmes, for instance in the field of research and innovation, where participation of third countries is allowed. That said, it would be on a different financial and legal base than today.
  3. Thirdly, since data flows will be important for several components of the future relationship, it should include rules on data.As already made clear by the European Council, for personal data, it will be for the EU to take adequacy decisions, where the level of protection in the UK is equivalent to that of the EU.
  4. Finally, given the UK’s geographic proximity and economic ties with the EU, the future relationship must be based on a strong level playing field.  It is in our economic interest – in your businesses’ interest – not to be undercut by unfair competition. So there will be no ambitious partnership without common ground on competition and state aid, social and environmental standards, and guarantees against tax dumping.  This will require adequate enforcement and dispute settlement mechanisms.

It is a ‘comprehensive offer’, and a good one.  The press has suggested that Theresa May favours an option with frictionless trade for goods, special terms for services and protection of UK interests in areas such as data sharing, security and air traffic.  And that, more or less, is what the EU is offering.

There are two main criticisms I’d make of it.  The first is the requirement for common ground on economic management, competition and state aid; that would require the UK to follow the EU’s worst economic policies. The second is that the EU has other commitments that it is duty bound to recognise.  It was the EU, not the UK, that promised British citizens that their fundamental rights would be protected.  Europe has to do more about this, regardless of the British position.

A few new books on social security

One of the disadvantages of being abroad has been that it’s been harder to get access to some recent books, and I’ve been taking the opportunity of the last week to catch up, using the resources of the National Library of Scotland.  First off is Welfare conditionality, by Beth Watts and Suzanne Fitpatrick (Routledge, 2018).  This is a short, insightful consideration of  conditionality,   distinguishing different kinds of conditions, attached to status, need and conduct.  The book’s main focus is in on behavioural conditions,  not just about social security but in other areas including social housing and homelessness; it also has a welcome discussion of the ethical issues.

Next is Understanding social security, a third edition edited by Jane Millar and Roy Sainsbury (Policy Press, 2018).  Like the earlier editions, it’s a collection of essays that fill in background information around the system, but it wouldn’t be much use to someone who did want to understand about social security, because doesn’t cover most of the main benefits, client groups or methods of distribution.  It woke up with an essay on ‘everyday life’ on benefits.

Then there are two books on Basic Income.  Malcolm Torry’s Why we need a Citizen’s Basic Income (Policy Press, 2018) is a second edition of Money for Everyone (2014)I think it’s much improved from the earlier edition, which reflects the depth of reading, the widening range of evidence and some practical proposals for how it might be introduced.  My reservations about the argument remain, however; I don’t think we can transfer evidence from countries where people are getting benefit for the first time to justify a scheme which proposes to take benefits away from many people.

The other book on UBI is a collection edited by Amy Downes and Stewart Lansley, It’s Basic Income (Policy Press, 2018).  This at least has some arguments against Basic Income, even if they get rather less treatment that the case for.  By comparison with the massive (and very expensive) anthology of essays collected by Widerquist and his colleagues, it’s rather less authoritative, but it’s accessible and wide-ranging, and it would be a good place for many students to start.   There are lots of gaps in the argument, about distribution, opportunity costs and universal services – Iain Gough’s explosion against the scheme from the Guardian is duplicated here – it would be helpful if some of the advocates addressed them.

I remain resolutely unimpressed by proposals for experiments that can’t possibly tell us what’s going to happen in the course of the next seventy years.  However, as Malcom Torry recognises in his book, we have already had basic income for families with children in Britain for forty years, and we already know  what the practical issues are (it works) and what the incentive effects are (none to speak of).

The fifth book is the bible, so to speak, or something slightly fatter: the new CPAG book, which I had delivered to Fife so I wouldn’t have to carry it back from Poland.  The first page covers the benefit rates, and I had a strong sense of déja vu; I’d seen this somewhere before.  Yes, it was the same as last year.

More evidence (if you needed it) that Universal Credit is failing

It’s not been a good month for Universal Credit.  Hard on the heels of the release of the Full Business Case, there has been a critical report from the National Audit Office and a troubling review of the operation of Universal Credit based on the experience of claimants.  Neither of them shows the system in a good light.  The NAO report casts doubt on the efficiency of service delivery and questions whether any of the claimed advantages of the reform can be realised.  They write:

We cannot be certain that Universal Credit will ever be cheaper to administer than the benefits it replaces.

There is no clear reason to suppose that the system will save money or that fraud and error will be reduced, and the impact on employment  is unknown and unknowable.  The review of the system’s operation finds that the system is complex, difficult to access and the support is inadequate.   Only half the claimants managed to claim without help, and the NAO found that rather less than half managed to get through the verification procedures online.  A quarter of claimants couldn’t submit a claim online at all. There were particular problems for older claimants and people with health conditions.  Then, after claiming. getting on for half the claimants were falling behind on bills or experiencing major difficulties.

One of the points that the NAO picks up on is timeliness in payment.  This little gem offers  the DWP’s reasons for late payments:

2.20  … The Department has told us that the performance had
declined because payment timeliness is sensitive to staff availability. It believes the lower performance can be attributed to:
• poor weather leading to office closures;
• February being a shorter month and therefore incorporating fewer working days to administer payments; and
• the Easter bank holidays.

Who could have guessed that there would be bad weather during the winter, that February would be shorter than other months, or that there would be a bank holiday at Easter?

Depressingly, the NAO  thinks we’re committed – this has gone on too long to be unwound again.  But there were still only 815,000 claimants in March, 325000 of them on ‘live service’ using legacy systems; that means that there are half a million people on full service, when the system is supposed to deal with 8.5 million.  It still makes sense to pause the rollout and fix what can be fixed.

Additional note, 15th June:  This is not so much an additional note as a reminder.  We’re being told, yet again, that Universal Credit was a great idea and everyone liked it.  I first objected to the ideas behind Universal Credit in October 2010, starting on the day that Iain Duncan Smith announced the scheme.  I argued then that the proposal was simplistic and impractical.  “There is no reason to believe that this scheme will increase incentives to work. There is no reason to suppose it will reduce fraud or error – quite the contrary. And there is no real basis for supposing it will make any difference in getting people to work instead. The government’s hopes for the new scheme look like wishful thinking.”  More than eight years later, there’s not a word of that I need to change.

I might add, though, an objection to the silly argument that UC is a success because more people receiving Universal Credit are getting into work while on the benefit.  The Resolution Foundation comments on the basis that 110,000 more people are in work; the DWP says that 200,000 will be.  The NAO has already commented that we can’t know whether this has anything to do with benefits at all, but let’s assume for a moment that it’s true.  This is a scheme intended to cover eight and a half million people (the figure is on page 4 of the  NAO report).  If 200,000 more people work, that covers less than one person in 42.  If it’s 110,000, it’s one person in 77.  For every person who gets more work than before, there are something between 40 and 75 who don’t. Universal Credit is  a scheme that introduces confusion and hardship for  roughly  half of all claimants.  Does it really make sense to make twenty or thirty people suffer to get one of them – just one – into a job? 

If governments seriously wanted to get people into work, it would be cheaper, fairer and easier to make jobs instead.