It’s not OK for the government to discriminate against disabled children but it is OK for them to discriminate against disabled adults

30th July, 2013 3:07 pm

You might remember the infamous “workfare” ruling some time ago that crucially didn’t judge whether the policy was slavery, but whether the policy widely seen as slavery had been enacted fairly.

Well today, we have a ruling not on whether the “Bedroom Tax” discriminates against disabled people – the judge clearly said that it did discriminate against disabled children – but whether the discrimination was “justifiable” and whether the discrimination was mitigated for in some way.

By arguing that Discretionary Housing Payments had been put in place up to the value of £25 million for this purpose, the government were found today by the judge to have put measures in practise to mitigate the effect of the policy on sick and disabled people

It was argued that mitigation was not adequate. DHPs are only a temporary measure and are not nearly enough to cover the needs of all people with disabilities who will be affected by the policy. Astonishingly for lay people like me, the judge said it was not his place to rule on that.

So I could continue with this article in the same vein. I could say that the government acted within the letter of the law, we are disappointed, but we shall fight on, blah, blah. I could explain the get-out clauses and minutae that split hairs and mean twitter is merrily arguing away on a pinhead as I type.

I could quote Anne McGuire, shadow disabilities minister, who has reacted with astonishment:

“I cannot understand why disabled adults with the same needs as children don’t have the same protection. What happens when a child reaches 16?  The decision defies logic by any definition! The transition from disabled child to adult has been made even more difficult.”

There was a time I would have been encouraged by this response. But the opposition are by their very nature “in opposition”. Votes in the House are not voted for on merit, they are whipped along party lines, so there is no ability to challenge from the opposition benches

Ultimately, whether we might think it should be or not, it seems it is not the place of a judge to rule on policy either, however unfair that policy might be, unless it is “Manifestly without reasonable foundation”. In layman’s terms, that means, apparently, that courts almost never interfere with the policies of a government at all. Politicians can skirt as dangerously close to “Manifestly without reasonable foundation” as they please, but otherwise, there is no recourse through the judiciary; none in law.

No, that was the job of the Lords. They are there to scrutinise policy and make sure good, safe laws are passed. It is the Lords who spend months, poring over government legislation in great detail and who demanded 11 amendments to policies within the Welfare Reform Act alone. They are still whipped to vote as they are told, but there are crossbenchers to balance out the partisan advantage.

But our government – neither elected nor with mandate – overturned every last amendment using an archaic 16th century law called “Financial Privilege”. Oh, there was outrage at the time. Former Tory Chancellors in the Lords denounced the move, committees here and there were up in arms, but the “law” won the day well and truly in that particular case. Selective isn’t it?

So away from the sound of the Westminster bubble almost popping with minutae and clauses, this is the gist of it: It’s now been ruled that it’s not OK for the government to discriminate against disabled children but it is OK for them to discriminate against disabled adults. It is enough that there are DHPs but irrelevant if they are adequate or not.

In a huge coincidence however, on this very day the government announced a further £35 million in DHPs. Nothing, of course, to do with the ruling, simply out of the goodness of their hearts. So now they are doing more to mitigate the legally accepted discrimination!

So that’s OK then.

DHPs are paid at the discretion of the local authorities. They decide how much they will pay and for how long. Once the money has gone, it has gone, they simply defer the time until someone will have to pay the “Spare Room Subsidy” or Bedroom Tax. The law will still be a bad law.

But none of that matters, because effectively, as a laywoman, I’ve learnt that governments, right here in the UK can introduce policies and laws with absolutely no checks or balances at all. Once a minister sets out on a policy direction, if he is determined to use every tool at his disposal to discriminate against a vulnerable group, he can. The Opposition can’t stop him, the Lords can’t stop him and the courts can’t stop him either. Not on policy detail.

Rule Britannia!

Value our free and unique service?

LabourList has more readers than ever before - but we need your support. Our dedicated coverage of Labour's policies and personalities, internal debates, selections and elections relies on donations from our readers.

If you can support LabourList’s unique and free service then please click here.

To report anything from the comment section, please e-mail [email protected]
  • kb32904

    Well said Sue !

    I feel heartened that lawyers have already said they will be appealing but the cost to the disabled people affected of this vile policy will be devastating & for many, an appeal might just be too late.

  • Brumanuensis

    “You might remember the infamous “workfare” ruling some time ago that crucially didn’t judge whether the policy was slavery, but whether the policy widely seen as slavery had been enacted fairly”

    With respect, Sue, whilst I agree it’s an awful policy, Judicial Review only considers whether the policy was enacted properly, not whether the policy itself has merit. That’s a long-standing feature of our constitutional order, which has ‘Parliamentary Supremacy’ at its heart.

    “DHPs are paid at the discretion of the local authorities. They decide how much they will pay and for how long. Once the money has gone, it has gone, they simply defer the time until someone will have to pay the “Spare Room Subsidy” or Bedroom Tax. The law will still be a bad law”.

    This is what needs to be emphasised. Regardless of its legality, this is still a bad law. Legal challenges alone won’t reverse it, because the government will be the one’s drafting the amended version.

    • Sue Marsh

      I do understand that now. I think many people don’t. They think that when these policies face legal challenge, it is actually the policy being ruled on. It’s not and I think most people find this inexplicable. They don’t believe this is how “democracy” works and are horrified when they find out, just as I was.

  • Monkey_Bach

    Why bother with the Courts at all? If a judge rules against them the Tories will just step back in time and enact retrospective legislation – quite possibly WITH HELP FROM THE LABOUR PARTY! – to make whatever unlawful things they have done lawful as they did with the Jobseeker’s Bill.

    These are people who will lie, obfuscate, and stoop to anything to get their way.

    (Sadly Liam Byrne and Stephen Timms are not much better.)

    Eeek.

  • Brumanuensis

    It is true though, as Adam Wagner has noted, that Laws J chose to make a point of deferring to the authority of the Parliament. Its been suggested that had he ruled against the government, the Public Sector Equality Duty might have been done away with, which would have been even more disastrous.

  • Peter Burgess

    Rule Britannia indeed. What’s the next line?

    Brittannia waives the rules?

  • Steve Stubbs

    The headline and the text disagree. The court ruled that there was no discrimination – so do you only accept court rulings in your favour? If you elect to go to court, then you accept the results, whether you like them or not.

    Both this government and the previous one have had to spend time and taxpayers money defending against attempts to circumvent the rule of parliament.

    Time to restrict the courts to administering the law, not trying to make it.

  • driver56

    It is no more than I expected from the courts, A weasel worded excuse. What are we offering the public if we get elected. If being the worrying scenario, we need to get Labour back to basic principles and remember why Labour was created.

  • Brumanuensis

    “Time to restrict the courts to administering the law, not trying to make it”.

    They already do. You need not fret.

    “The court ruled that there was no discrimination”

    No, the judgment held that the government had discriminated, but that they had sufficiently mitigated it.

x

LabourList Daily Email

Everything Labour. Every weekday morning

Share with your friends










Submit