Rotherham council and UKIP

The BBC is reporting that a couple in Rotherham have had their foster children taken away, because they are members of the UK Independence Party.

If this is true this is extremely worrying, and legally problematic.

The council's decision maker, Joyce Thacker, points to a number of policies of UKIP's that she perceives as unacceptable and which she claims justify this decision. These include its policies on immigration. The couple claim that they were told that 'UKIP is a racist party', with the implication that they too might therefore be racist.

One possibility that initially seemed likely to me was that perhaps some kind of unpleasant comments by the couple might be the real cause of concern, rather than the party membership itself. But Ms Thacker made no such claim, and seemed to agree that it was membership of UKIP per se that was the problem.

If so, this is a terrible precedent. Both Labour and the Conservative Party have not entirely dissimilar policies on immigration to UKIP. In its 2010 manifesto, the Conservative policy on immigration was barely distinguishable froim UKIP's current policy — the main difference being that UKIP would also withdraw from the EU.

In 2010, Labour Minister for Immigration (as he then was) Phil Woolas took a line on immigration that was barely distinguishable from either UKIP or the Tories. And this is before you consider what other policies the main parties might have that might be perceived as odious, perhaps on welfare, education, civil liberties, or the NHS.

Ms Thacker has also confirmed that there were no concerns over the care being given to the children. The only problem was with what she called a concern for 'the children's cultural and ethnic needs'. To me, this sounds a lot like weasel words for punishing the couple for their political views.

If Rotherham's actions are correct, this means that the possibility exists of children being taken away from foster parents on the basis of their being Labour or Tory party members, due to those parties' policies being seen as unacceptable. But this is not only a bad idea, but also a huge fallacy: simply because someone is a member of a political party, it does not mean that they share all that party's views, and it does not mean they agree with all its policies. People might support a political party for a number of reasons, but everyone should only be judged on their own views and actions. Otherwise we could have any number of ridiculous but analgous situations: a conservative-voting pensioner might be refused social housing, based on the Conservative party's policy towards such housing, for example. Or a Labour-voting police officer might be sacked, because he is deemed to be vicariously liable for Labour's policy on law and order.

Legal difficulties

Ms Thacker also seems to consider that the children's nationality or ethnicity makes a difference: it would be fine for the unnamed couple to foster a British child, but because the children here are EU citizens, and hence immigrants, it is unacceptable for a UKIP-supporting couple to care for them.

In the absence of some actual discriminatory behaviour by the couple, this is not only a huge stretch of logic but almost certainly unlawful discrimination by the council, in my opinion. The children are being treated differently because of their nationality — not by the couple, but by the council. This is unlawful under EU law, which has direct effect over the council, and quite possibly under domestic law as well. Good motives are no defence to unlawful discrimination.

There is also a (recently developed) possibility of discrimination due to political party membership. This is a concept which comes from the ECHR case Redfearn v UK. The facts of the case were that a bus driver employed by a private company was sacked for belonging to the BNP. The employer felt this was justified, because of the BNP's views, even though Mr Redfearn had not been guilty of any racist or discriminatory behaviour against any person. The European Court of Human Rights held that this was a potentially unlawful violation of the claimant's right to freedom of association, and that he must be given the right to at least bring an unfair dismissal claim in the domestic courts. This at first seemed tough for me to swallow: the BNP are certainly an odious organisation. But it makes more sense when you consider the undesirability, discussed above, of allowing a political party's views and actions to be imputed onto each of its voters or supporters rather than judging them as individuals.

In Redfearn, the dismissal stood notwithstanding the ruling, because the employer was a private comapny. But following this ruling, it seems that a public body cannot now act contrary to this ruling because of section 6 of the Human Rights Act::

6 Acts of public authorities.

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.  

(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

Subsection (2) does not assist the council here, as they are exercising a discretionary power. Therefore it seems that it must follow that the council's actions in violating the Convention right
established in Redfearn are potentially unlawful and liable to be quashed.

There would be a defence to such a claim if the action could be shown to be proportionate. Redfearn did not establish that all discrimination against political views is unlawful in all circumstances. But the case that the treatment here is proportionate seems extremely weak. I would urge the couple concerned to seek legal advice urgently.

Update:

It seems there is a by-election coming up in Rotherham, which is rather convenient, and a lot of UKIP supporters are urging people on Twitter to vote against Labour in repsonse to this. This seems far too good to be true for UKIP, and the only thing stopping me thinking they have made the whole thing up is the fact that Ms Thacker went on the BBC and seemed to confirm UKIP's version of events.  It will be interesting to see if there is more to it.

The main problem with universal credit

Universal credit is the government's planned replacement for several current benefits. It is due to replace them for new claimants in April 2013.

Income support, income-based JSA, income-related ESA, housing benefit, and tax credits will be merged into this single universal credit. Despite the name, many other benefits will remain, but the ones being merged share the common feature of being based on the claimant's household income.

However, there is one benefit that is also based on household income that is not being merged. That is council tax benefit.

Council tax benefit is going to be abolished in its present form, and replaced with local council tax support. This local support will almost certainly have its own income-based rules, with only the details being different locally.

At one stroke this decision virtually wipes out all of the claimed advantages that universal credit promises.

The reason is that universal credit itself will have a 65% taper. This means that for every £1 somebody earns in a week, they lose 65p of benefit that week. This model exists in all the currect income-based benefits, but the amount currently varies as follows:-

• IS/JSA/ESA: 100%
• Housing benefit: 65%
• Tax credits: 41%
• Council tax benefit: 20%

Where a claimant gets a combination of these, the interaction is complex and the total taper depends on whether one benefit counts as income for another or not. We don't need to worry too much about the details, but the outcome is these combined taper rates:-

• IS/JSA/ESA + any other: 100%
• HB + CTB: 85%
• HB+CTB+tax credits: about 92%

So at first glance these current withdrawal rates seem to compare favourably to the single 65% proposed for universal credit.

But because council tax benefit is not being merged into universal credit, and because neither universal credit nor council tax benefit will count as income for each other, the future withdrawal rate will actually be 65% + x%, where x is whatever level is set by the local council. Given that local council have to cut their support below the current level of  CTB expenditure, it seems unlikely that x will be under 20 and could be higher.

So we will get:

• Universal credit + local CTB: 85-90%

 We are immediately back to the same problem as before, solely because of this one awful decision on council tax. 

BAS Parking Services breaching the clamping ban

Private clamping and towing of vehicles was definitively outlawed in England and Wales on 1st October 2012. Before that, it was legal in certain circumstances, but private companies overstepped the lawful limits more often than not – although it was not always clear where the limits were. The law has now been made very clear.

But it seems that in Bristol, BAS Parking Services are vioalting the ban - apparently with the council's consent:

"Enforcement of parking restrictions at this site is carried out by a private contractor which responded to reports of a number of motorists parking at the flats without a permit and, unfortunately, this employee was caught up in this action and was towed away."

They seem to be unaware that this method of enforcement is now a criminal offence.

Section 54 of the Protection of Freedoms Act 2012 states:

54Offence of immobilising etc. vehicles

(1)A person commits an offence who, without lawful authority—

(a)immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or

(b)moves, or restricts the movement of, such a vehicle by any means,

intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.

(2)The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).

Implied consent of the motorist was the old reason that clamping could be lawful in some cases. The act clearly covers towing, as well as clamping, if the towing is intended to prevent the owner driving the vehicle without making a payment. Accepting or demanding any payment would also now be an offence under the Consumer Protection from Unfair Trading Regulations 2008 and could carry a prison sentence of up to two years.

Some comments on that page have claimed that as clamping and towing by councils can still be lawful, BAS are in the clear as their contractor. Clamping and towing by councils can amount to "lawful authority" for the purposes of section 54(1) where they are enforcing statutory parking restrictions: that is, where a traffic order has been made on public land (a road or public car park). Lawful clamping and towing by councils on public land also carries a statutory right of appeal to the council, and from there, to the traffic penalty tribunal.

It seems clear from the council's statement that this does not apply here. The motorist's appeal has clearly not been considered under the statutory system - otherwise, having decided he should be refunded, the council would have to refund him. Here, they have said that they have passed the matter to BAS and will not decide the outcome or pay anything themselves.

This means that BAS have committed a criminal offence while acting as contractors to Bristol City Council. If Bristol City Council have instructed or procured their use of towing after Oct 1st, the council are equally guilty of the offence. There is no blanket exemption for councils who are not exercising lawful authority, and nothing in section 54 to suggest that ignorance of the law would be a defence.

Update 27 Oct: Bristol City Council have not commented further, but their PR Office confirmed they were not aware that towing vehicles without lawful authority has been made a criminal offence. The police have been informed of the incident.

Watchdog clueless on statutory consumer rights

This week's Watchdog had a worrying story about Amazon Kindles breaking down after a short period of time.

What they totally failed to spot, as seems to happen quite often, is that Amazon's claimed policy of imposing a guarantee limited to one year has no basis in the law.

All goods bought from a business are covered by section 14 of the Sale of Goods Act 1979. This means that the goods have to last a reasonable time, considering the price paid and nature of the goods. This is fairly basic consumer rights law.

An expensive item like a Kindle that is not obviously perishable is expected to last longer than one year. It's (almost) excusable for retailers to try it on a bit, but Watchdog should know this kind of thing.

Proposed changes to child benefit - a reasonable idea turned nightmarish

Iain Duncan Smith has proposed limiting benefits payable for children in any family to a maximum of two children. If the parent or parents then went on to have more children, they would not receive additional money for the third or higher child.

In some ways, this is quite a reasonable idea. The additional amounts of benefit paid for families with more children can be fairly generous. Each additional child can currently bring in approximately £70pw in tax credits and child benefit. It also entitles the family to rent a larger house and to a higher income disregard in housing and council tax benefit worth about £50pw for each child.

I have thought for some time that some kind of limit to how many children a person can have while claiming benefits, just as someone who wants to claim help for a mortgage cannot usually take out a new mortgage while on benefit.

The extent of additional money for each child has already been somewhat limited by the new, and highly flawed, benefit cap of £500 a week per household. That system will only affect people with 4-6 children, depending on a number of factors such as the amount of rent they pay. If this new change were implemented, then it would make the cap completely obsolete as nobody with under four children would ever be affected by it. But this is where we get into difficulties with what has now been proposed.

The first problem with the new proposal is that Duncan Smith is once again making it into an issue of those in work against those out of work. From his description of things, you would get the impression that 'those with three or more children' and 'those in work' are two separate groups on a Venn diagram that don't overlap. But this is wrong - people in work can obviously have more than two children.

Despite purporting to make this distinction, there is nothing in IDS's announcement that suggests this change will be limited to those out of work. It seems that everyone will be affected. So it's not just something aimed at the unemployed - we need to be clear on that, or a falsehood is spread.

As I said above, I think it would be reasonable to limit people from having more children while on benefits and immediately claiming more money for them. But it would definitely not be fair to say that if a parent with 4 children loses his or her job, then he or she is unable to claim enough money to live on. It's not as though someone who has lost a job can give up children.

And this is the point where fridge horror sets in. Benefits for children include help with higher rent, for the larger family. This proposal means that a parent with 4 children losing his job would almost immediately become both homeless and un-houseable. This completely undermines the idea of safety net. We may see families forced to split up and children being sent to live with other relatives (who will then be able to claim benefits for them - ruining the point of the idea once again.)

This government has no idea what it is doing. It just pushes through seriously flawed ideas without thinking them through, before and again. No-one who looked carefully at the last benefit cap thought it was a good idea, so I am very worried about this new idea.

Is the benefit cap really pushing thousands back into work?

Short answer: no. But a Daily Mail article nevertheless claims this is the case.

IDS claims that the upcoming benefit cap of £500 pw is causing 'thousands' of families to look for work. So that's already a bit of a climb down from them already going back into work, for a start. 1,700 people in this group have found work, which is 3% of the group. And we don't know over what time period that is: in any case it is a pretty low take-up rate.

The cap of £500 which starts in April 2013 will affect very few people. It will only apply to families with a lot of children. Families with a lot of children can indeed receive relatively high rates of benefits: after all, they have a lot of people to split that money between. On the other hand, it is not necessarily unreasonable to limit the number of children people can have and immediately request state support for them all.

But this is where the reasoning for this particular system of cap breaks down. It is wrong to compare it to the amount 'an average couple would earn in work'. This is for two reasons:

1. A family of the same size with the parents in work can also claim a lot in benefits - possibly the same or even more than one out of work. (This is even lampshaded in the Mail article!)
2. The £500 a week in benefits has to support between 5-8 people, whereas an average couple in work earning that only have to support two people. (And if they have children they will get additional money through benefits.)

The cap also creates a new 'couple penalty' - remember, that thing Cameron promised to abolish but hasn't? The cap applies per household. The obvious thing for a large family with two parents affected by the cap to do would be to split into two nearby households - who then only have a total cap of £1000 pw between them, which would be absolutely impossible ever to reach.

If the cap of a mere £500 per week really is causing 'thousands' people to look for work, how could IDS possibly know about it?

The only way would be where they are claiming jobseeker's allowance, the DWP would have a record of their jobsearch activity and requirements. But in that case, those jobsearch requirements would have already applied without the cap. Most families with children need to claim JSA, and to look for work as a basic condition of entitlement. That has been the law since the 1920s.

Look again at the exact words used:

 "Despite all the scaremongering, research now shows that of those housing benefit claimants affected by the cap, a third said they would now be looking for a job."

Note that it doesn't say this is new, or because of the cap. They could have been looking for a job all along - and must have been.

PCC Elections - Bill Etheridge's manifesto

Bill Etheridge, the UKIP candidate for Police and Crime Commissioner, pledges (in addition to the standard things most candidates are saying):-

•  I will demand tougher and more sensible sentencing from Judges. I will send a written request to each Court in the WMP area and request most vehemently that they adhere to the Sentencing Guidelines Council recommendations for that crime. 

This is a worrying statement, which suggests that as I feared in yesterday's post, PCCs may not be happy to keep to the duties that are prescribed or recommended for them by the Home Office. Writing to judges should not be part of his role, for very good reasons, and it is highly unlikley any member of the traditional executive branch of government would dream of violating the separation of powers like this.

If Mr Etheridge did this he would be at risk, in my opinion, of acting contrary to the Constitutional Reform Act 2005, as well as ultra vires the powers granted to him by Parliament. The section 3 of the CRA states:

(1)The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

 and

(5)The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

Subsesction (5) might well include those who are part of the Home Office as well as actual ministers. If a public body or official acts contrary to statute, this does not imply any criminal offence, but does leave the decision liable to being quashed by the courts. Parliament can also hold the executive to account. But because of the directly elected nature of the PCC position, it will exist outside the established executive branch of government and will not be accountable to Parliament in the usual way that ministers are. And it is not clear yet if the courts will be willing to interfere with actions of directly elected office holders. I'm sure Mr Ederidge is not alone in this kind of plan, so this could mean interesting times.

Absurd

This is not a parody image. It is actually taken from the Home Office PCC election website.

Apparently, in this universe, if you don't vote there will be no more police.

If this were not such a ridiculous implication to make, it might amount to a breach of advertising standards rules, but is probably saved by appearing to be a joke.

Why I will not be voting on Nov 15th

On November 15th, we will be asked to vote for the first elected Police and Crime Commissioners. This new post was created with the stated aim of "giving the public a say in cutting crime", and the government describes it as "being at the vanguard of its reforms". The theory is that an elected police chief will make the police better at serving in a way the public want.

This all sounds great, but there are two very serious problems with this idea.

1. There is little that a voter can do to make a meaningful choice as to which candidate to vote for.
2. The concept of electing the police, or voting on which crimes to enforce, is inherently dodgy.