This is a little out of my usual line, but the story in yesterday’s Independent is so fabulous that it demands to be included. Cristina Kirchner, the President of Argentina, has adopted a Jewish man to save him from becoming a werewolf. Juan Peron extended the protection to women, and since 2009 it has been available to Jews; this adoption comes 21 years after his parents asked for him to be included. The tradition carries some important privileges, including an educational scholarship, and President Kirchner has used the opportunity to promote harmony in different cultures.
A new study by the Scottish Public Health Observatory has reviewed the potential effects on health of a series of interventions. The effects on health are considered mainly in terms of mortality and the need for hospital care. The measures in relation to incomes, cutting alcohol, tobacco or obesity, and encouraging cycling and walking to work.
The biggest benefits, by far, would be gained by the introduction of a living wage; the next biggest, though it is even more important for the poor, would be an increase in minimum income benefits. Some of the measures they are being compared to seem restrained – a weight-management service rather than measures to reduce sugar, short-term interventions on alcohol rather than taxation by unit – but the size of the difference is so big that it’s unlikely to tilt the table.
The Guardian reports that the Labour party is considering, yet again, introducing quotas to protect the position of women and minority ethnic groups. This time it’s about the English judiciary, but whenever the idea of quotas is mooted, it’s generally intended to protect the position of disadvantaged groups. Good motives, however, do not justify bad ideas. What the proponents seem not to grasp, no matter how many times it’s been shown to be the case, is that quotas are self-defeating – either ineffective, or counter-productive – a thoroughly bad way to respond to disadvantage.
First, quotas are exclusive as well as inclusive – they define who can’t be appointed as well as who can. So, people from the ‘wrong’ minority ethnic group are disadvantaged relative to others from the ‘right’ group. That is the source of a string of cases in the USA, notably Bakke and De Funis. Second, quotas become ceilings. Elster, in Local Justice (1992), compiles a long list of evidence that while quotas may initially help to redress the balance, they shortly become devices to stop the process of equality going any further. Third, even before the ceiling is reached, quotas act to slow down the process of redressing the balance, deterring and limiting applications from the very people they’re supposed to help.
There are decades of evidence to draw on – that’s why quotas were made illegal in the Race Relations legislation of the 1970s. But this is another of those ‘zombie’ arguments. It doesn’t seem to matter how often it’s exploded, cut down, disappeared or confined, it just carries on shuffling towards us.
The World Bank has just issued a new report, Empowering Women, which reviews the legal rights of women in sub-Saharan Africa. The report is listed as being for sale from 15th October, but most World Bank reports are also available as a free PDF and I found the link here, in a 6 Mb download.
The report focuses on laws that establish the framework for other rights, including marriage and divorce, inheritance and property rights. The findings are depressing, though perhaps not as depressing as the book’s publicity suggests. The positive elements are that 45 out of 47 countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women, and if 21 out of 47 subject women’s rights to the authority of a head of household, that should mean that 26 don’t. The Appendix listing court cases also point to many examples of women’s rights being upheld or extended. The authors note, though, that the effect of common law, dual legal systems and the gaps between theory and practice all work to limit women’s rights, and that the effect of formalisation (e.g. in Kenya) may well be not to extend protection but to institutionalise disadvantage.
Gypsy/travellers are the minority group most discriminated against in Scotland. In a report published today by the Scottish Parliament, the Equalities Committee describes the findings as ‘deeply shocking’ and describes its reaction as ‘horrified’ and ‘appalled’. The work I do doesn’t often bring me into direct contact with travellers, but I did do some work in Aberdeenshire in 2004 which gave me the opportunity to talk directly with travellers about their situation. One of the women said what it’s like: “you’re a floor they can dance on.” The travellers talked about rampant racism, discrimination in services, harassment and lack of protection by the police – “we’re just a puckle of tinkers to them”. It’s good to see some public attention, but depressing to see so little progress.
Following the publication of the draft Universal Credit Regulations, I have been looking at the rules defining couples. Under the new rules, couples are being required to claim jointly, and neither has any secrets from the other. Couples are defined in the Welfare Reform Act 2012, s.39, as follows:
- “(1) In this Part “couple” means—
- (a) a man and woman who are married to each other and are members of the same household;
- (b) a man and woman who are not married to each other but are living together as husband and wife;
- (c) two people of the same sex who are civil partners of each other and are members of the same household;
- (d) two people of the same sex who are not civil partners of each other but are living together as civil partners.
(2) For the purposes of this section, two people of the same sex are to be treated as living together as if they were civil partners if, and only if, they would be treated as living together as husband and wife were they of opposite sexes.”
I was intrigued by the description of people in same sex relationships as “living together as civil partners” when they are not civil partners. When the legislation governing civil partnership was introduced, the government went out of its way to emphasise that it was not a form of marriage. Civil partnership was deliberately defined in terms of public commitment, and strongly distinguished from marriage. Now we find it treated in the same terms as “living together as husband and wife”. Neither definition, of course, explains directly what this means.
With the winding down of Income Support, we are losing the main residual benefit that is available for people with very low income who don’t fit other pre-set categories. The DWP have announced a new rule, “easing” conditions for JSA claimants who have been victims of domestic violence. “Victims will be offered a period of support without worrying about looking for work.” This is very much to be welcomed, and I hope the precedent will be extended to others in catastrophic or unpredictable situations.
A legal case raises some interesting questions. Several benefits, including Housing Benefit, supplement the incomes of people living on low wages. Hull had been paying low wages to its female employees, but councils have been rushing to implement the equal pay legislation enacted in the 1970s, and Hull is one of the employers which has seen the light. However, the council reasoned, if their female employees had been paid in the first place, they would not have been entitled to the same benefits. In Kingston upon Hull City Council v DLM (HB)  UKUT 234 (AAC), the council successfully argued that as the back payment of pay was income for a previous period, the benefits should be retrospectively reassessed, and the payment was accordingly reduced.
The decision seems to me flatly wrong. Benefits which are overpaid cannot normally be recovered if there is no fault or error, and the judge explicitly acknowledged there was none. It also seems doubly perverse that it should be possible to cut payments retrospectively while another rule, the ‘anti-test case rule’, denies back-payments for wrongfully determined claims.
David Cameron, the leader of the Conservative party, is reported this week as saying: “We talk about people being at risk of poverty, or social exclusion: it’s as if these things — obesity, alcohol abuse, drug addiction — are purely external events like a plague or bad weather. Of course, circumstances — where you are born, your neighbourhood, your school and the choices your parents make — have a huge impact. But social problems are often the consequence of the choices people make.” In one sense, this has to be true. However, the sentiment Cameron is expressing invites condemnation of the poor, and for that reason it should be treated with great caution. Poor people do not have the choice of avoiding poverty; the nature of poverty is that it limits choices. Condemning people with very little choice for making the wrong decisions seems peculiarly callous.
I should explain the title of this comment, for the enlightenment of those who haven’t had the benefit of a merciless British education. “Musical chairs” is a children’s game. There are fewer chairs than children, the children run round the chairs in a circle, and when the music stops, they have to try to sit down. Those who do not sit down in time are out. Now of course it is true that those children who sit down tend to be those who are faster, bigger or quicker. The children who hesitate tend to have made the wrong choice, and they have probably reacted more slowly. But it would be ridiculous to blame the children who lose; the game has been designed that way. The same is true of poverty. People who lose out are often less well qualified, less connected, or slower. They may have flaws of character; they may not have responded to opportunities; they may have made the wrong choices. It does not follow that their poverty is their fault. It is more important to ask whether society shouldn’t provide a few more chairs for people to sit on.
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.