Brexit and the misunderstanding of Democracy

quote-democracy-cannot-succeed-unless-those-who-express-their-choice-are-prepared-to-choose-wisely-the-franklin-d-roosevelt-157938

“The people have spoken, and their wishes must be respected.” We have been hearing a lot of this recently, and not only from the majority who want to see what they voted for realised. There seems to be a broad acceptance of the proposition by the minority also.

I do not want to question democracy itself – as Churchill once famously observed,

No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…

But I do want to cast the spotlight on this curious understanding of what democracy means: that a bare majority of those voted on a particular day must prevail in the argument.

As an understanding of democracy, I think this is both reductive and insular. Reductive, because it is just not as simple as that in a modern social democracy. Insular, because it is not like that in many other modern social democracies. Somehow, it seems that winners and losers alike have caught onto a notion that the bare majority of those who voted on a particular day must prevail; seemingly unaware of the counter-arguments that regularly prevail elsewhere. Continue reading Brexit and the misunderstanding of Democracy

Advertisements

DoLS, floodgates, and judges who won’t play ball

Deprivation of Liberty seems to be an issue which is putting the doctrine of judicial precedent – where lower court judges have to follow the reasoning and decisions of higher court judges – under considerable strain.

Here, I document – mainly to collate the resources into one place – two recent instances of where the lower courts have been questioning the higher courts.

But actually, this is not new. Continue reading DoLS, floodgates, and judges who won’t play ball

An elephant in the room – what could an extra 26 weeks do?

The Court of Appeal has given judgment in a case where the judge at first instance delayed for 6 months between the end of the hearing and giving a decision: http://www.bailii.org/ew/cases/EWCA/Civ/2015/606.html.

As ever, hat tip to @suesspiciousmin for reading the case so that we don’t have to! His commentary is here: http://suesspiciousminds.com/2015/06/18/six-month-delay-in-giving-judgment-appeal-point/

I just wanted to say, there is an elephant in the room. Continue reading An elephant in the room – what could an extra 26 weeks do?

Age Assessment: let’s all guess together!

On 22nd May, ‘Joint Working Guidance’ on Age Assessment was published by the government, branded with the logos of the Home Office and ADCS. More guidance on age assessment is promised in the near future.

‘Age assessment’ is the misnomer commonly used for a process whereby social workers allocate a date of birth to potential service users. BASW has last week published a position statement which questions the use of the term, but more importantly warns against social workers undertaking the exercise alone.

BASW is hosting a twitter debate on this on Monday 8th June between 6-8pm. Here (that would be below, after the background section), I want to set out why I think it is indeed a nonsense for social workers to carry out single-agency age assessments. Continue reading Age Assessment: let’s all guess together!

Vote for what you believe in!

Political Compass

(Image above from the Political Compass website at http://www.politicalcompass.org/uk2015)

It seems to be a recurring theme of this election that we are being asked to vote tactically. We are being told how important it is to keep out parties we don’t want. We are being asked to look ahead and second-guess post-election coalition talks: “vote this colour, and you’ll get that colour”. We are not only told it nationally, we are also told it locally: “in this constituency, the only person who can beat the incumbent is so-and-so”. We are told that a vote for a party that won’t win is a wasted vote.

This is a plea not to vote tactically. Look, if what you really believe in is represented by one of the big parties Continue reading Vote for what you believe in!

Two benefits of a Human Rights Act

I’m flagging up here a couple of posts by others, a couple of posts which I’m linking together as highlighting benefits of the Human Rights Act. Both are from bloggers I’d highly recommend following anyway – @DrMarkElliott‘s Public Law for Everyone and @SteveBroach‘s Rights in Reality. Both are about recent decisions of the Supreme Court. But since they’re both legal blogs, I hope the authors won’t mind if I go back a couple of steps for a non-legal audience.

Irrationality or proportionality?

There has been a long-running debate about what happens if the State (which includes central and local government and lots of officials and bodies which make decisions on behalf of the State) does something unreasonable. Decisions have been able to be challenged by a process called judicial review, but a very old case Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 (10 November 1947) gave its name to a long established principle, that you can’t win a judicial review just because the State is unreasonable. Continue reading Two benefits of a Human Rights Act

Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States

OK, it’s not a pithy title. It is, however, the formal title of the document that I’m about to review. And it is an accurate description of what the document is about. Here it is: http://website-pace.net/documents/10643/1127812/EDOC_Social+services+in+Europe.pdf/dc06054e-2051-49f5-bfbd-31c9c0144a32.

Preliminary points then:

  • I’ve blogged here before with a ‘Briefing paper on non-consensual adoption and the law‘. It included observations on the human rights dimension and on the European dimension. I am pleased to see that this is a Committee of the Council of Europe, saying pretty much exactly the same things as I did.
  • PACE is the Parliamentary Assembly of the Council of Europe, which oversees the European Court of Human Rights. The origins of this report lie in a motion on “abuse by social services of member States of the Council of Europe of their authority to remove children from their parents’ custody” – a history of the progress of this report, including a visit to the United Kingdom, can be found here: http://website-pace.net/documents/10643/59254/RepPrepSOC-E.pdf/1b1d25ac-757f-4916-9c44-9180531dfae6#page=3.
  • This report went to the Parliamentary Assembly last week, and the Assembly adopted the recommendations unanimously.
  • The report expressly considers the practice of non-consensual adoption in the United Kingdom, and frames it within the broader context of practice elsewhere.

Key points from the report Continue reading Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States

Briefing paper on non-consensual adoption and the law

Note: this was not originally written as a blog post, as you can probably tell…

1. Introduction

It is explicit in government policy that there has been a push towards more and faster adoption. This was notably so under Michael Gove, who was himself adopted:

In fact, the press for more adoption neither started nor ended with Michael Gove, and arguably more properly represents a pendulum swing, between a model of social work that favours family support (intervention to keep families together) and one that favours child rescue (intervention to give children a better life).

This paper sets out, only briefly, some of the legal issues that have arisen in relation to the policy push for adoption. In is underpinned by two broad points about the nature of the law: Continue reading Briefing paper on non-consensual adoption and the law

If the State wants to take your child, be prepared to represent yourself!

If you read one judgment this year, read this by Munby on legal aid: As scathing a judgment as you will ever read.

…wrote @JackofKent on Friday. I have read more than one judgment this year, but agree with the “must-read” label. This case ticks so many of my boxes in addition to what it says about legal aid. It’s also about:

  • social work and the law
  • the human right to a fair trial
  • principles of natural justice
  • non-consensual adoption
  • CRPD rights of parents with learning disabilities
  • the Rule of Law and the Separation of Powers

So I felt I really ought to try some commentary, especially when one tweeter asked Continue reading If the State wants to take your child, be prepared to represent yourself!