A Human Rights Bill for Scotland: submission to a consultation

The Scottish government is consulting about the introduction of a Scottish bill to incorporate human rights law into Scottish legislation.  The exercise is somewhat limited by the terms of the devolution settlement, which largely reserves ‘equal opportunities’ to Westminster – it’s in schedule 5 of the Scotland Act 1998 , but there are other things that the Scottish Parliament could do.

I’ve responded to some of the questions, and I am duplicating my response in the passages that follow.

1 What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?

‘Dignity’ is subject to interpretation. Nordenfeldt, in an article on “The varieties of dignity” (Health Care Analysis, 12(2) 2004), identifies four different meanings: dignity as merit, as moral stature, as identity, and as human worth. Only the fourth of these is universal. The former Chief Rabbi, Jonathan Sachs, claimed a fifth: the ‘Dignity of Difference’, arguing for a view of dignity that was both collective and cultural.

The incorporation of the principle of ‘dignity’ is unlikely to have the legal effect that the Scottish Government desires. A recent judgment in the European Court of Human Rights upheld the right of a Roma woman to beg, on the basis that the right to beg was an expression of her dignity (ECHR 2021, Lacatas v Switzerland, 14065/15) – but the right to have enough resources not to beg was not protected.

3 What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?

The Human Rights protected by international law are intended to establish a universal minimum. Equalities, social protection, economic rights, social rights, public sector duties and access to justice are not really part of that. They are, rather, rights of citizenship, going well beyond the limited aspirations of human rights.

Laws that focus specifically on Human Rights have had at most a limited effect on the operation of the law in the UK. According to solicitors Mishcon de Reya (Submission to IHRAR’s Call for Evidence, 2021), Human Rights were cited in 538 legal cases from 2000 to 2021: the courts made a Declaration of Incompatibility in only 39 of those cases, and 8 of those were overturned on appeal. (The main impacts in those very few cases have related to immigration and mental health issues.) The Scottish Government cannot rely on the incorporation of Human Rights law to address the broad range of problems identified in this consultation.

5 Are there any rights in the equality treaties which you think should be treated differently?

The Scottish Government is legally limited in what it can do for protected groups, because that would be liable to violate the reservations of the Scotland Act, but it can pursue equality more meaningfully by other routes. The Child Poverty Strategy is an example.

12 Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?

The Human Rights Act 1998 only committed governments and their successors to uphold the minimum standards established in international law. This is a floor, not a pillar.

15 How do you think we should define the groups to be protected by the equality provision?

The protected characteristics identified in the Equality Act 2010 leave gaps and ambiguities. The many gaps include, for example, national origin, locality, social class, accent, inequalities of birth, fortune and discrimination through favoritism. The Scottish Government may not have the competence to amend the Equality Act, but it can at least take action on these issues as they relate to the conduct of public policy in Scotland.

16 Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people?

Disagree. Age, sexual orientation and gender reassignment are already protected in the Equality Act. It is difficult to see what difference further legal incorporation will make.

19 What is your view on who the duties in the Bill should apply to?

I support the principle that duties should apply to any body carrying out devolved public functions.

33 What are your views on our proposed approach to ‘standing’ under the Human Rights Bill?

The extension of ‘standing’ to permit persons with a ‘sufficient interest’ to initiate legal action is welcome. However, it still falls some way short of what is needed to protect economic, social and cultural rights.

In the USA, legal action takes two other forms not currently permissible in either England or Scotland:

● the use of class actions, extending beyond group litigation to people who are affected but not participants; and
● the presentation of a Brandeis brief, a rule of evidence which has been available in the USA for more than a century. The brief makes it possible for courts to consider non-legal submissions from social scientists, reviewing evidence of the overall economic or social impact of a case. Evidence in this form can be taken from amici curiae, persons or bodies not otherwise party to the action.

In so far as these are rules about due process in a court of law, introducing these measures would fall wholly within the competence of Scottish law-makers.

36. If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rightsholders, what additional remedies would help to do this?

There need to be routes permitting rapid, authoritative, low-cost access to legal redress. As things stand currently, judicial review of administrative action can only be granted when other measures have been explored and failed. This creates barriers to justice, and the process is simply too slow to protect people with limited resources. There have been rapid, urgent actions taken on behalf of some people, such as migrants facing illegal deportation, but there is no obvious equivalent route for people who have been left without money for food this week. For most, there is no effective way of  getting legal redress before the penalty, and the problems, have been suffered.

40 What are your views on our proposals for a Human Rights Scheme?

Impact assessments can act as a useful guide to administrative action, but in practice (for example, in relation to gender or the environment) there has been a tendency for some bodies to claim that there is nothing to consider when they have simply failed to see the implications. Assessments need to be reported, collated and subject to scrutiny in order to be effective in guiding practice.

 

For those who want to add their views, the full consultation, which closes on the 5th October, is available here.

 

 

 

 

Coping with inequalities in wealth

There has been some interest recently in wealth inequalities, for example in work by the Fairness Foundation.  Much of this focuses on the wealth of the very rich.  In recent correspondence, I’ve been struck by the extent to which others considering the issue have focused, not so much on the implications of inequalities in wealth, but on fair taxation and inequalities of income – problems relating to benefits and low wages.  I’m sceptical that either focus can address wealth inequalities in a meaningful way.

Any conceivable redistribution of income will not (by definition) touch the established holdings of people who hold assets as wealth – typically in the form of real property or financial products.  There may have been an argument in the 1950s and 60s for heavy taxation of income (the flow) to prevent the accumulation of wealth (the stock), but the genie is out of the bottle; the wealth has been already been accumulated. Income taxation now can slow further accumulation, but that does not begin to address the issue.

That may seem to some to constitute an argument for wealth taxes, such as property taxes, inheritance tax or taxes on capital transfer.  That makes sense in terms of fairness – subjecting wealthy to the same criteria as others – but it can only ever have a limited effect on the distribution of assets, because they are based on a proportion of wealth at best.

What we need to do, instead, is to reconsider how the problems created by unequal wealth might be addressed.  Wealth inequalities may have seemed harmless to Tony Blair, who said he was “intensely relaxed about people getting filthy rich”, but they have implications for people who don’t share in that wealth.  In particular, they create obstacles to access to land, housing and, to the extent that people have become rich by using their assets to extract money from people who aren’t rich, they make for problems relating to rent, poverty and debt.

I think there are two main directions to go in.  The first is to consider the problems, not of the rich few, but of the many poor – in these terms, those who do not have assets. More income will help deal with issues of poverty, debt and manutrition; and regulations to cover those circumstances, such as protection related to financial services or limiting the interest that any  creditor can receive,  would have direct benefits.  However, in important fields of life – especially rent and residential care  – the main beneficiaries of greater income support will be those who hold the assets on which those services are based.  Supporting income is not enough.

The second direction is to establish a base of assets that will be available to people regardless of their financial circumstances.When the National Health Service was introduced, it had a major effect on the resources available to the poor – an effect that is largely concealed by the way we choose to keep public accounts.  Part of this can be seen as an implicit income: everyone in Britain has, whether they use the service or not, a financial gain equivalent to the value of health insurance. Part, however, is the equivalent of a savings fund: the protection of assets that in other circumstances would be exhausted.  When people have access to social housing, libraries, museums and parks they have gained command over resources – if not quite as good as ownership, something pretty close.   And when those resources are withdrawn from people, they feel the loss.

A wide range of basic services could be treated in this way.  They include, for example, funeral plots, free transport, legal aid, university education, wi-fi, child care, basic banking services and mailboxes.  Provided publicly, these things allow people to act as if they had the assets themselves.  That would have a much great effect than any focus on the assets of billionaires.

Citizenship in an independent Scotland

The Scottish Government is keen to represent Scotland as an open, inclusive society.  It says so twelve times in a position paper, published as part of a series on Building a New Scotland.  It could be questioned whether this document has any status at all, because constitutional matters fall wholly outside the legal powers of the Scottish Government, but it’s nevertheless interesting to see what the SG makes of a basic question: in an independent Scotland, who would be its citizens?  On one hand, we have a document that is intended to be accessible and welcoming to people from a wide range of nationalities.  On the other, there are clearly defined rules which would exclude those people from citizenship.

First, the rules. The document explains on page 1:

Under the Scottish Government’s plans, you would automatically be entitled to Scottish citizenship on the day Scotland becomes independent if you are already a British citizen and you:
• live in Scotland (described in law as ‘habitually resident’)
• were born in Scotland
• have a parent who was a British citizen born in Scotland, or
• previously lived in Scotland for at least ten years, or five years as a child, with a pro rata calculation for young adults.

Note the critical point: this only applies if you are already a British citizen.  The point is expanded on page 24:

The interim constitution would establish that the following groups would be entitled to Scottish citizenship at the point of independence:
• British citizens habitually resident in Scotland
• British citizens born in Scotland but living elsewhere
• British citizens living elsewhere but with a parent who was a British citizen born in Scotland
• British citizens living elsewhere who previously lived in Scotland for at least ten years, or five years as a child, with a pro rata calculation for young adults.
This is an open and inclusive offer of citizenship to all people who live in, were born in or have a close and enduring connection to Scotland and are British citizens at the point of independence.

I think we have different ideas of what an open and inclusive policy looks like. This directly excludes a large number of lawful, long-term residents.

Perhaps, you might think, they don’t really mean that only British citizens can expect to be Scottish as of right.  The document makes great play of Scotland’s present willingness to extend rights to outsiders:

Scotland already has an inclusive approach to civic participation and social protection. …  Most rights, entitlements and obligations in Scotland are based on residence rather than citizenship. For example … In Scotland, any lawful resident with leave to remain under the current UK immigration system may vote, 30 and any lawful resident settled in Scotland (e.g. with indefinite leave to remain, EU settled status or pre-settled status) may stand for office in the Scottish Parliament or in local government.

The document explains that people who are resident, but not citizens, will be welcome, and they will have a shedload of rights, so it hardly matters if they’re not full citizens (page 10). But the same text goes on, on the same page,  to list those rights which will be exclusive to Scottish citizens.  Those rights include “the right  to live and work without restriction in Scotland and enter and leave the country at will.” Surely they don’t mean to deny such rights to lawful residents?  If they don’t, why write this?

There are two apparent contradictions in this policy.  One lies in how the document is presented.  If we take this rules as they stand, they exclude long term residents of Scotland with a right to reside. If you’re French, or Bulgarian, or Chinese, or Ukrainian, they don’t mean you.  Which makes it somewhat puzzling that the Scottish Government has neverthless translated the document summary into those four languages, along with several others.

The other contradiction occurs in a short comment on page 24.  After explaining that only British citizens are included, the text continues:

Some people may not wish to become Scottish citizens in this way. This could be because some countries place limits on their citizens holding additional nationalities.

“Some countries” object – but Britain is not one of them.  Anyone who is both a UK citizen and the citizen of another country (as I am)  will not be affected this way. So why is this sentence here?  It seems likely, as so often happens, that this text is the work of more than one hand, and some body in this process has insisted that the text had to be revised so that it only applied to British citizens, and it’s been done clumsily.

 

‘Low value’ degrees

The government (and, apparently, Rishi Sunak in particular) thinks it can distinguish ‘low value’ degrees from others by what happens to students shortly afterwards.  The test of a higher value degree, it seems, is whether students obtain a professional job, go into postgraduate study or start a business.

Very few undergraduate degrees lead directly to a professional qualification; students will commonly have to go through an intermediate, professional stage in order to qualify for jobs.  What, then, are universities teaching when they offer courses in various sorts of ‘studies’ ? The answer is much the same as it would be for traditional degrees in English Literature, History or Philosophy.  Universities aren’t, for the most part, in the business of training; they’re engaged in higher education.   Students are being guided how to absorb information, select it, order it, evaluate it, and communicate it, and (increasingly) they are learning how to do that independently, without much further guidance.  Their future employers  are interested in the skills that graduates have, not in the specific knowledge they have gained during their studies.

If we ask why some courses have worse ‘outcomes’, the answer is unlikely to be found lurking in the specific knowledge area that the course has covered.  It’s much more likely to be a question of respect for the institution, status, and the background of the students.

My own first degree, for what it’s worth, was in Politics, Philosophy and Economics – the same low-value, airy-fairy course done by the likes of Rishi Sunak.  My parents disapproved.

Social Policy: a subject still in trouble

I’ve just read a review of the state of Social Policy teaching in UK universities.  Twenty years ago, I made the case that the subject was in ‘deep trouble’.  At the beginning, this report cites me saying that,  but the tone of the report is more positive, claiming that Social Policy is still threaded through a wide range of courses.  I’d hold to my initial position.  It isn’t just that ‘social sciences’ are ‘under attack’: Social Policy has fared particularly badly.  There are only 18 single honours courses in the UK, and 25 institutions offering joint honours.   A sizeable clutch of universities have closed their courses.

There are two points of particular concern.  The first is the hopelessly inadequate description of Social Policy, taken from the Higher Education Statistics Authority,  as “the study of the policies of institutions which are designed to modify the balance of sociological factors”.  There is a common confusion in the idea that Social Policy is about policy for society.  Some social policies are – Ferge called them ‘societal’ or ‘structural’ policies.  Many are not; they’re about economics, or politics, or service delivery.    If the description had only talked about ‘the balance of economic, social and political factors’, I probably wouldn’t have kicked about it, but it still doesn’t cover the ground. The assumption, that Social Policy is about issues in Sociology, is quite misleading.  Yes, Social Policy does draw on Sociology – but it draws on much, much more.  That ‘more’ includes Economics,  Law, History, Psychology, Management, Philosophy and Politics – and if it doesn’t, it’s not being taught very well.

The second big problem is the relegation of practical and professional issues to the sidelines.  Students of Social Policy need to know about policy analysis and social administration – issues such as planning, partnerships, voice, empowerment,  quasi-markets, incentives, targeting, access to services and so on.  And I was disturbed to see, in a long list of cognate subjects in Table 2.3, no reference to Housing Policy, Social Care or Social Work.

 

A comment from Stewart Lansley:

I really agree with this. I have two concerns about social science teaching and research today – one is the failure to incorporate an economic perspective in examining on social policy. The other, in part because of this, social scientists have effectively lost much of the influence they enjoyed in the post-war era ( all in the case of the Tories ).

There’s some discussion of this in Policy Press | The Richer, The Poorer – How Britain Enriched the Few and Failed the Poor. A 200-Year History, By Stewart Lansley (bristoluniversitypress.co.uk) which is in part an attempt to merge economic and social analysis.

75 years of the NHS

The NHS – and the British Welfare State -are 75 years old today.  I’m not going to try to cover all the issues here, but I did offer a potted summary in my book, How to Fix the Welfare State (Policy Press, 2022).  Here are two of the summaries from that book, for the chapters on the NHS and Social Care.

 

 

The NHS

Key points  

  • The NHS offers a form of insurance, providing medical care to anyone.
  • Despite the dominance of hospitals, general practice is at the heart of what the NHS does.
  • The need for public health has been highlighted by recent experience.
Positive developments  

  • The NHS has moved away from long-stay institutions and focused on medical care.
  • General practice has been greatly improved.
Where policy has gone wrong  

  • Private markets cannot fill the gaps. They depend on producers having choices, and that leads to exclusion.
  • Health is public as well as individual. Reducing everything to the personal level compromises the aims of health services.
What to do instead The health service has to provide different levels of service: decentralised general services, more specialised work for larger areas, and highly specialised centralised provision.

Social care

Key points  

  • The shift from health care has left services that are fragmentary, insecure and often expensive.
  • Residential care has grown because it is an effective way of providing intensive services, but not all residents need that.
  • Domiciliary care has been based in a flawed model of ‘personalisation’ – and a catastrophic assumption that it won’t be sustainable.
  • Care in any setting depends on continuing personal relationships.
Positive developments  

  • This service did not exist when the welfare state was founded.
  • It was created as part of the movement away from long-stay institutions. It has its failings, but at least it has made it possible for some people to continue to live in their own homes.
Where policy has gone wrong  

  • Personalisation has never lived up to its promise; it only works for some.
  • Creating something like a market in social care is no guarantee of choice.
  • Markets offer commodities; people who need care need something different.
What to do instead The clients of social care need people with time and skills, not a shopping list of the tasks that workers will fulfil. Both residential and domiciliary care will need teams of carers who can offer a personal service to clients.

A place for anti-poverty strategies

One of the difficulties faced by old-timers in the field of social policy – and I have reluctantly to admit that that description applies to me – is that the same ideas, good or bad, will always come round again.  I was mildly intrigued then, rather than deeply excited, to see a report from LSE about local anti-poverty strategies.  It’s nearly 25 years since I prepared an anti-poverty strategy for Dundee Council, their first.  Some of the lessons that the LSE report draws were evident in that exercise: the importance of ensuring that local actors buy in to the strategy, the need for an action plan, and the necessity of having some means of monitoring implementation and outcomes.

There are, however, some other lessons that it’s important not to lose sight of.  The first was to produce a plan for everyone in poverty, not just those living in deprived areas.  The second was the need to be inclusive – to let people with different ideas about needs and priorities have their say – and not to impose my own definitions or understandings on people.  The third was to allow people in poverty to identify their own priorities.  Before I did this work, for example, I hadn’t understood how important pets were to people’s lives.  That’s the great advantage of open-ended, qualitative research – it gives people scope to say what matters most to them.

I also found, in three successive focus group interviews,  although I’d come to talk about poverty, they all wanted (quite independently of each other!) to talk about deafness.  It wasn’t right for me to tell them that they were off the subject – far too many people in poverty have their concerns overridden by well-meaning academics.  Poverty is a much broader topic than managing on low incomes. The first thing any researcher or planner needs to do is to listen.

 

 

The welfare state: a communitarian perspective

Today I gave a plenary paper to a conference of  the Wales Institute of Social and Economic Research and Data, under the title of The welfare state: a communitarian perspective.  The conference brought together Welsh academics and researchers with practitioners from the voluntary sector.  Here is the abstract:

Communitarianism is not, as some critics imagine, an argument for the dominance of the community over the individual. It begins from the view that our rights, responsibilities and moral understandings are rooted in the society of which we are part; these phenomena are socially constructed, relative, contingent and particular. A society is not a single ‘thing’: it is a network of networks, depending on a mesh of interactions, exchanges and obligations. Welfare provision has developed from the networks, duties and conventions which bind a society together.
       The welfare state is commonly understood in three ways: as provision by government, as a complex set of systems for social protection, and as a normative ideal. This presentation will argue for a fourth understanding. The welfare state is a way of describing a set of normative aspirations. These aspirations are sometimes thought of as universal, but all welfare states apply principles of ‘bounded solidarity’; the terms of the welfare state depend, like ideas of equality, social justice, or democracy, on the context of the society in which they are applied. The ‘welfare state’ is a direction of travel, not a destination.

The paper is online here, on my access page.

Misunderstanding socialism (again)

An article in the Daily Telegraph by Priti Patel, a former Home Secretary, has been given a preposterous headline: Britain can still escape the OECD’s radical plan for permanent worldwide socialism.  What she’s actually writing about is a proposal for to level the playing field in relation to Corporation Tax.  I think it’s likely that the identification of this proposal with ‘socialism’ has been made by a Telegraph sub-editor – I’m sure that Patel would be more eager to get us to engage with her argument. I’m not going to do that, but I am concerned about the lazy insult, and I want to clarify two things about the terminology.

The first is the supposition that state regulation or ‘intervention’ is a form of socialism, implicitly opposed to the operation of free markets.  By this test, just about every country in the world would be ‘socialist’.  There isn’t a government anywhere that doesn’t have some form of expenditure on health education.  Nearly all (just not quite all) spend on education.  Something like three quarters of all countries now have some kind of national scheme for cash benefits.  This isn’t  worldwide socialism – it’s just what contemporary states do.  Grown-up politics needs to be concerned with how policies like this work.

The second misconception concerns the nature of socialism.   Wikipedia  reflects a common confusion when it writes that ‘socialism refers to economic and social systems which are characterised by social ownership of the means of production … social ownership is the one common element’.  This is plainly wrong. Social ownership is not necessarily socialist (roads? parks?) and many socialists are concerned less with ownership than with public welfare.

The terminology used in the Wikpedia article is marxist, once dominant but now at best a minor branch of socialism. Marxists  like to claim that their beliefs are the only real and true form of socialism, ignoring the simple fact that socialism developed some time before marxism and the political movements parted company about a hundred years ago.  Right-wingers (such as Kristian Niemitz, writing for the IEA) also like to think that ‘socialism’ means the same thing as ‘communism’.   It doesn’t: that’s why we have different words for the two.

Socialism is complicated, but here is a short summary from my website:

There are many forms of socialism. The main models, which can be found in various permutations, include representations of socialism as

  • a movement for the improvement of society by collective action (for example, in Fabianism)
  • a set of methods and approaches linked with collective action, such as cooperatives, mutual aid, planning and social welfare services (e.g. the co-operative movement);
  • a set of arguments for social and economic organisation based on ownership and control by the community (e.g. in syndicalism, guild socialism and anarchism)
  • an ideal model of society based on cooperation and equality (e.g. Owenism and utopian socialism);
  • a critique of industrial society, opposing selfish individualism (e.g. Christian socialism), and
  • a range of values, rather than a particular view of how society works (e.g. the position of the Parti Socialiste Européen in the European Union).

 

A just society? Rawls is not the way

An article in today’s Guardian argues that the philosophy of John Rawls offers “a “realistic utopia” that provides the basis for a broad-based and genuinely transformative progressive politics.”  I don’t share that view.  Rawls makes a case for some of the key values dominant in American liberal politics, but falls far short of encapsulating progressive values.

The first weak point in Rawls’ approach rests in his appeal to the idea of a social contract – that what reasonable, moral people will agree to offers us a model of fairness and justice.  Reasonable people may well agree to lots of things.  Sometimes they will opt for things that have good consequences – what is good.  Sometimes they will choose what is right. He thinks they will agree to principles of individual freedom and a degree of useful inequality. Perhaps they will, perhaps they won’t; but whatever they do agree to, ‘justice’ is not the same thing.

This might come over as a quibble about language, but it’s been fatal to most attempts to form a picture of a ‘just’ society.  Consider, for example, the fate of the Commission on Social Justice in the 1990s.  They ended up with a political manifesto covering everything they could.  If justice means everything, it means nothing.

The second weak point concerns Rawls’ ‘difference principle’: that people should accept a degree of inequality on the basis that it leads to more for everyone.  This reflects the influence of the ‘Pareto principle’ adopted by many economists.  That approach fails to understand that inequality is intrinsically exclusive: that where inequalities occur, people with resources are able to outbid and so to exclude others from the benefits that they claim with those resources.

The third weakness lies in the construction of ‘justice’ and ‘fairness’.  These are not end-states, and cannot be understood in those terms: they are principles, and the pursuit of either is a continuing process.   The point, I have argued in other work, is ‘not to eliminate every conceivable injustice at one blow, but to ensure that each step makes the situation more just than it was before.’

That leads me to one of the strongest objections to Rawls’ vision: that there is no route from where we are to where he wants us to be.  The plea for a ‘realistic utopia’ is not just an oxymoron: it is an impossibility.  In The future of socialism, Tony Crosland made a devastating critique of utopian politics.  Every change we make alters the picture; it means, it must mean, that the conditions which have to be addressed will no longer be the same as they were before.