Policy, Politics

Some brief thoughts on the Benefits system

I’m unashamedly a supporter of the welfare state.  I think it’s fundamentally a good thing that the State, rather than independent charities, steps in to provide support to people who are facing a tough time.  There is abuse of the system though, as there is with every single system that exists.  There will always be people who take advantage and there comes a point where there is little more you can do to deal with this small group without harming the vast majority of people who are not abusing the system.  In terms of the welfare state, I think we have reached that point.

While I am a supporter of the welfare system and while I don’t think there is much more we can do to deal with those who abuse the system without harming the vast majority who don’t, I am of the view that there is room for reform within the system.

The benefits system we have in the UK today is very bureaucratic and complex.  There is little doubt in my mind that if we looked at it from scratch again we could simplify the system reducing the bureaucratic nature of it as well.  That would ultimately reduce costs in the long term without actually harming the living standards of those who rely on the benefits system to help them make up a shortfall.

One thing I find when I discuss the benefits system with people is that many of the examples people give are not what I would term abuse (by abuse I would refer to people who claim no more than what they’re entitled to, but make no effort to try and get out of those circumstances), but rather they refer to people making fraudulent claims.  I often hear people saying that their neighbour or someone they work with is claiming benefits to which they are not entitled.  That’s called fraud and it is a criminal offence.  People do need to be more forthcoming in reporting those who are fraudulently claiming benefits.  Those who investigate these crimes often have to work on information passed to them from the public as without undergoing a very expensive and labour-intensive process of personally visiting every single benefit claimant in the country, it is often difficult to spot fraud.  CrimeStoppers will even take reports anonymously and pass it to the Department for Works and Pensions, Police or local authority.

I don’t necessarily agree with the way in which the present Government is dealing with welfare.  For instance, I think that the popularly named ‘Bedroom Tax’ (or under-occupancy penalty) is a highly unfair system that doesn’t take account of people’s personal circumstances.  It’s a blanket policy, which rarely works (especially in welfare cases).  It takes no account of the need disabled people might have for a bigger house than they would otherwise need, or of parents who have separated and require a spare bedroom (or bedrooms) for their children when they come to stay or of people who have children who attend residential schools (for educational reasons such as learning difficulties) and a whole host of other circumstances.  One can understand the reason behind the Government introducing the policy, but it is flawed and is poorly thought out.  It also fails to take account that because of the Right to Buy and a failure of local authorities (of all colours) to ensure an appropriate supply of housing to meet the needs of the people in their area, that there is actually insufficient housing for people to downsize into if they do find themselves with too much space.

In terms of things like the benefits cap, I think the Government are failing.  Again, it is understandable why the Government want to introduce the cap; however, it fails to take account of circumstances.  The benefits system should be there to act as a safety net, ensuring that those who find themselves in temporary difficulty are not at risk of losing their home and are able to maintain at least a basic standard of living.  That means that when a person who was working become unemployed (perhaps because they’ve been made redundant) they should be able to access support to ensure that their rent or mortgage is covered, that they have enough money to put three balanced meals on the table for each member of their household, that they are able to continue ensuring that their children are properly clothed and able to participate in relevant educational activities and such like.  It may not be popular with some in society, but equally we shouldn’t put people in a position where because of no fault of their own they are facing homelessness or can’t feed themselves properly.  Both of these situations costs the public purse a lot more than it would to support them until such times as they get back on their feet.

That’s half the problem, there is little thought put into the residual effects of these policies.  It might very well be possible to feed a family on £7 per person per week, but is that going to produce a healthy and balanced diet?  I’d suggest that it won’t be.  That then has a cost to public health and to the NHS in the long term.  What savings a Government might happen to make to the welfare budget by simply slashing what is paid is likely to later be dwarfed by the cost to the health budget when people’s health starts to deteriorate because they’re not eating healthily.

As a student I’ve been attempting to eat healthily lately.  I have found it to be much more expensive than not eating healthily.  I can buy crisps and chocolate to last a week cheaper than I can buy fruit to last only half a week.  Meat and fish are also expensive, but pretty essential to a balanced diet.  I can buy processed pizzas and other junk food like that for cheaper than I can meat and fish.  Fruit, meat and fish are almost certainly going to be off the list when living on budgets as small as £7 per week per person.  I know when I undertook the ‘Live below the line’ challenge a couple of years ago (living on £1 per day for 5 days to raise money and awareness for extreme poverty around the world) that fruit, meat and fish were all off the menu for those 5 days.  Instead I was filling up on rice, noodles, eggs and bread: not the healthiest of diets.

The reality is this constant chipping away at the system and policies aimed at appeasing party supporters is not working.  A proper discussion is needed about welfare, which puts the problems, costs and benefits into perspective so that we can reform the system in a way that doesn’t harm the people it’s there to help and protect.  As I said earlier, you are never going to eliminate abuse from the system so we should stop pretending that we can.

English Law, Policy, Politics, Scots Law

Live TV coverage of court proceedings?

In any democracy having an open and accountable court system is an important pillar.  Justice should be conducted in an open fashion whenever possible and this, I believe, should include the televising of some court proceedings.

Scotland is not averse to having cameras in the Courts.  The BBC were granted exclusive access to film in Glasgow Sheriff Court to produce the TV Series “Sheriff Court” and cameras were permitted into the High Court of Justiciary to film the handing down of the Appeal Courts decisions in the appeals against conviction of Nat Fraser and Luke Mitchell.

There is certainly room for television cameras in courts.  However, I remain concerned about their impact on the trial process if trials were to be televised.  I would say that this extends to some civil proofs as well as criminal trials, but the concerns relate mostly to criminal trials.

A lot of things happen during the course of a criminal trial that cannot, for obvious reasons, be broadcast on the television.  If a full days sitting at the High Court, for example, was to be televised then it is quite likely that a significant amount would need to be cut out.  This could cause difficulty for live broadcasting.

Throughout a case at court a jury may be required to leave the court room while legal debates take place.  These could be on a whole range of things including whether to admit or exclude a piece of evidence.  The jury are generally not permitted to hear such debates for a number of reasons.  Firstly, matters of law are for the presiding judge alone and not the jury.  Secondly, it’s rather pointless holding a legal debate to exclude, for example, a piece of evidence and permitting the jury to be present and to hear/see the evidence in question.  These legal debates are rather boring, even for those sitting on the public benches who have an interest in/knowledge of the law and the probability of anyone wanting to sit and watch is not very probable.  However, if this debate was to be broadcast then matters which should not be within the knowledge of a juror might well become into the knowledge of a juror.  That could potentially undermine the trial process and the accused’s right to a fair trial.

Jurors are not supposed to discuss cases when outside of the jury room and when they are not all gathered together.  There is little doubt that some jurors already go home and offload to a spouse or partner about what they saw or heard that day in court.  To think otherwise is foolish, some of the evidence which jurors will see and hear is so harrowing that they have to discuss it with someone.  It’s no different to, for example, a police officer going home and talking about their day to their spouse/partner (again, they shouldn’t be but it does happen).  However, what if that spouse or partner had seen some of the trial on the television while in the house?  Could we then start to get opinions of those who are not jurors influencing the decisions of juries in our courts?

What about showing the jury or witnesses on TV?  Yes, anyone could in theory turn up at the court and sit in the public gallery and see witnesses or jurors.  However, in my experience court staff do not expect people to be in the public galleries and will often make enquiries as to the person’s reason for being there.  With someone in the public gallery arousing suspicion then someone in the public gallery acting in a suspicious manner is likely to get the alarm bells ringing in the minds of the court police officer, court clerk and possibly even the presiding judge.  Having witnesses or jurors appearing on the television could make it far easier for there to be interference with or intimidation of witnesses or jurors during the course of a trial.  That impacts upon the administration of justice and could render the trial process unfair.

Undoubtedly, news editors will likely want footage from the trial for their news bullet-ins.  Would this be appropriate? Taking what might be 30 seconds of evidence from up to 5 hours worth of evidence?  Jurors will obviously have already heard the evidence.  However, could this 30 second clip taken entirely out of context affect a juror’s perception or memory of the evidence?  It could do so in a good way, but it could equally do so in a bad way.

You can create all the criminal offences you want to help avoid the above problems, but if one of the above problems does arise then retrospective criminal action against the offender won’t stop the damage that may already have been done to the trial in question.  Serious breaches as a result of television broadcasts might well result in an expensive retrial having to take place.

However, I would be highly supportive of TV cameras capturing just about every other aspect of court proceedings.  Undoubtedly a murder trial might be more appealing to the public than a proof on whether a line in a contract means X, Y or Z but should a murder trial be broadcast live in its entirety?  I would say no.

Criminal Justice, Criminal Law, Policy, Politics, Scots Law

SNP’s proposed “sectraian” law

Sectarianism is a scourge of Scottish society and is the cause of so much misery and trouble, particularly in relation to football.  Quite rightly the political leaders at Holyrood are united in their determination to deal with sectarianism which plagues Scotland’s communities and can effectively ruin a good afternoon/evening out at the football.

Recently we have seen the sectarian divides in football take an unwelcome turn for the worst as what can only be described of acts of terrorism being carried out.  Neil Lennon, manager of Celtic Football club, as well as a prominent QC and former MSP (both of whom are known Celtic supporters) received through the post packages that were designed not only to cause fear and alarm, but to cause physical injury.  These incidents are not, of course, representative of modern sectarianism in Scotland which is normally confined to utterances and the singing of offensive songs at football games.  However, they do further highlight the problem that faces Scotland.

The First Minister in his address to Parliament setting out the SNP’s vision for their five year term pledged to tackle bigotry.  The Scottish Cabinet has backed a new sectarian law which was proposed by the First Minister and the Cabinet Secretary for Justice.  The Government’s aim is to pass the law before the Scottish Parliament breaks for its summer recess, which will mean a final vote on the legislation no later than 30 June 2011.

While discussing the proposed law on television and radio neither the First Minister nor the Cabinet Secretary have been able to set the record straight on exactly what this new legislation will do.  The confusion and what appears to be a lack of consensus between Mr Salmond and Mr MacAskill is concerning to say the least.  Surely one would expect such an important piece of legislation to be properly scrutinized by experts outside of Parliament who would appear before the Scottish Parliament’s Justice Committee to give evidence.  The Justice Committee would examine the proposals in detail and come back to Parliament with recommendations as to how the law could be improved and strengthened.  This cannot happen with legislation to be passed in little over a month; indeed it would appear that the Parliamentary draughtsmen have not even completed writing the Bill yet.

Legislation is always seen as the key to solving a problem by politicians.  It’s as if, in their minds, passing a new law will eradicate a problem overnight, and that their work is done.  The problem of sectarianism, like Scotland’s relationship with booze and violence, is a more complex sociological problem that simply passing a new law will not solve.  New laws are often about being able to create good headlines and give the impression that the Government is actually doing something to tackle the issue, when really they are not.  The sociological aspects of sectarianism are not going to be solved overnight and are going to take, at the very least, a generation to resolve.  It is going to need more than simply creating new offences (I will come on to argue that actually these new offences are probably not even required), it needs a lot of work starting off with proper Religious Education, more of a focus on citizenship in Personal, Social and Health Education, and for the police and courts to come down heavy, using the laws that already exist, on those who engage in sectarian activities.

The police are doing what they can to tackle sectarianism with the already considerable powers that they have.  In a recent BBC Scotland News report Assistant Chief Constable Campbell Corrigan of Strathclyde Police said:

Very often the solution to this would be to identify those who are singing…and through either their ticket allocation, or if they are season ticket holders, then identify them and deal with them after the match.  For me the whole issue is that it doesn’t always need a response of running into the middle of a large group which is impractical and often unsafe.

From that what it would appear the police are doing is using the CCTV and television footage available to identify offenders and deal with them after the game.  It is obvious to any reasonable person that the police wading into the middle of the crowed to arrest one or two individuals for singing sectarian songs or chanting sectarian remarks is dangerous for the police themselves and the members of the public around those individuals. Only in the most extreme cases should the police adopt such tactics.  The SNP’s new law wouldn’t result in the police cracking down more on sectarian disorder at football matches, they are likely to use the same tactics they do currently: identify the offenders and knock on their door a few days or weeks later (depending on how long identification takes).

The Scottish Government probably won’t struggle to get the Bill through Parliament in the time they have allotted it.  Having a majority in Parliament makes these things a lot more likely and with it being so early in the new Parliament any SNP members who are uncomfortable with passing legislation so quickly are unlikely to rebel so as not to risk a Government defeat.  A Government defeat within the first month or two would be disastrous for Salmond and his Government.

There is a very real problem with passing legislation quickly though.  Rushed legislation is always bad legislation.  One only has to look at the disaster that is the Criminal Procedure (legal assistance, Detention and Appeals) (Scotland) Act 2010 for evidence of what can happen when you rush legislation through Parliament (no more will be said on Cadder here, my views are very well documented on this blog).  The legislation is always ill thought out and will inevitably have to be re-visited in order to fix the problems that would most probably have been identified and resolved had Parliament taken longer to consider the legislation.  Yes, sometimes genuine emergencies do arise that require urgent legislative action to fix, but given the scale of the sectarian problem in Scotland one can hardly consider it a genuine emergency requiring legislative action taking no more than one month.  The opposition leaders in Holyrood should be very vocal on that while action is needed to tackle sectarianism in Scotland the answer is not to rush a Bill through Parliament.

Is the legislation actually needed?  I would argue that it is not.  The conduct which Mr Salmond and Mr MacAskill regularly refer to in relation to this Bill is, in my view, already adequately covered by existing criminal laws.  We saw the mess that Labour got themselves into in England and Wales by simply creating new offences, many of which related to conduct already adequately covered by existing criminal law.  In the end they created more than 3,000 new criminal offences in 13 years and they had little overall impact on crime.  Yes, passing a new law creating brand new criminal offences generates headlines that allow politicians to say that they are taking the issue seriously and are being pro-active in dealing with it.  However, as I have already said above, simply passing legislation rarely solves a problem (or indeed rarely ahs any impact on actually dealing with the issue).

In my view it would be better for Salmond to set-up a cross-party Parliamentary committee to specifically look at the issue of sectarianism, and examine in detail the measures that could be taken that would hopefully break the cycle.  It is going to take far more than simply looking to the criminal law; we are dealing here with a social problem engrained into society.  The problem is that many people just do not see the harm of singing a few sectarian songs at football games.  I have friends who are the most open-minded people who are certainly not in any way, shape or form bigoted, but yet the fail to see the harm of singing such songs.  Its part of the atmosphere or it’s just what happens at football is what they’ll often come out with in the defence.  This requires the changing of attitudes and messing about with the criminal law will do nothing to change those attitudes.

I will await the publication of the Bill with interest, but I can almost guarantee that what we end up with is an ineffective law with consequences that were far from the intention of Parliament.  Often we will hear the First Minister talking about listening to the will of the Scottish people (especially in relation to independence and a referendum on independence), well the Scottish people should be vocal in telling him to slow down and deal with this issue properly.  As is often said (and indeed the point has been made by the First Minister many times himself) the test is not how much legislation is passed, but the quality of the legislation that is passed.  This issue is far too important to get wrong.

For some more excellent commentary on the subject pop over to Lallands Peat Warrier’s blog, he makes some excellent remarks with which I mostly concur.

Criminal Law, Human Rights, International Law, Legal System, Policy

The issue of Prisoners’ votes

Today in the House of Commons Members of Parliament overwhelmingly voted against extending the franchise to persons in prison having been convicted of criminal offences.  The decisions of the European Court of Human Rights (ECtHR) in the case of Hirst v The United Kingdom ([2005] ECHR 681) has effectively been ignored until now.  The matter which it raises has been a thorny one for politicians as it will not go down well with the vast majority of the general public.

The ECtHR did not decide in Hirst that all prisoners should be given the right to vote and indeed it was very clear from its judgment that this was not the practical implication of its decision.  What it has decided is that the automatic removal of a person’s right to vote upon being sent to prison having been convicted of a criminal offence is unlawful in terms of the European Convention.  I dealt with a the relationship between the United Kingdom and the Convention and its institutions in a blog post yesterday evening and so do not intend to deal with those points in great detail here (though they are intrinsically linked in respects of the arguments put forward by opponents of prisoner suffrage).

While watching the debate in the chamber today through the BBC website I heard many arguments against the move and as is always the case some were more convincing than others.  One MP argued that those who fought for the vote to be extended beyond male land owners would not have considered voting as a right but rather a privilege.  This was one of the less convincing arguments that I heard during the debate.  I was left wondering if I was the only person who understood the point of their fight for the vote being based on the principle that it was a right and not a privilege!

As I said above I am of the opinion that in some cases it is appropriate to remove the franchise from some people while they are in prison as part of their punishment.  I have given some thought as to how I would approach this issue if I were a member of the Government and settled on the following (which I believe would comply with the judgment in Hirst):

1. All prisoners sentenced to 12 months in prison or less will retain their right to vote in all cases.  12 months is not an arbitrary figure that I magically pulled out of a hat, but it is based on the law as it currently stands in relation to those who can hold a seat in Westminster.  Currently anyone sent to prison for 12 months or less can seek to be elected to Parliament and continue to hold their seat while in prison.

2.  All prisoners sentenced to 12 months, but less than 4 years will lose their right to vote, unless otherwise ordered by the court

3.  Where it is likely that an individual is going to be sentenced to a period of custody in excess of 12 months but less than 4 years may make an application before sentencing to not have their right to vote suspended.  The court would consider as part of the sentencing process whether the individual should be permitted to retain the vote based on a set of guidelines issued by the Sentencing Council or the Supreme Court.

4.  In cases where the individual is sentenced to a term of imprisonment of more than 4 years the question of their ability to vote could be considered by the Parole Board as part of their wider duties applying the same guidelines discussed in point 3 above.  Prisoners would have to make an application to the parole board for this to be considered when making their application for parole.

Voting by prisoners would be conducted by way of postal vote and would be for the constituency in which their last known address was.  In cases where they had no last known address their vote would be cast in the constituency where their parents currently reside.  Where no parent remains alive, or where the parents are no longer in the United Kingdom it would be based upon the town in which their birth was registered.  Where none of the criteria are met their constituency would be the one in which the court they were sentenced falls.

This would ensure that no one constituency is overly affected by prisoners voting and indeed that no one Member of Parliament is overly burdened by prisoners to the detriment of his or her other constituents.

As was pointed out in the chamber by some MPs today the United Kingdom cannot simply pick and choose which decisions of the ECtHR it follows.  Courts make decisions which are unpopular with one party to the case before them; it is a consequence of their function.  They are being asked to adjudicate between two parties who disagree with each other; this means that at least one party will not be happy with the outcome of the case.  The United Kingdom agreed to have the ECtHR make judgments on matters relating to the European Convention on Human Rights and as such gave up part of its sovereignty when it did so.  The giving up of sovereignty is part of the function of International Law.  To allow a pick ‘n’ mix approach to judgments of the ECtHR undermines its authority and makes the convention a meaningless statement of intent.

Regardless of the Parliament’s decision in the vote today it is going to have to pass legislation that changes the law as it stands and it should do so having taken part in a reasoned debate that looks at more complex options, such as the one described above, to resolve the matter.