The 'criminalization' of social security law: Towards a punitive welfare state?

Journal of Law and Society

Volumn 34, Issue 3, 2007, Pages 295-320

  Larkin, Philip M ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

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EID: 34547857799     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00394.x     Document Type: Article

References (119)

1. As with the Social Security Act 1998, which represented the first major legislative reform to the social security system by the Labour Government of 1997-2001.
2. One example of this being the Tax Credits Act 2002, hailed by the Chancellor of the Exchequer as 'A tax and benefit system that puts families first in the modern world', recognizing 'the very real pressures parents face right up the income scale.' See G. Brown, 383 H.C. Debs., cols. 586-7 (17 April 2002).
3. Government plans in relation to Incapacity Benefit appear to involve the creation of schemes designed both to encourage and coerce those in receipt of the benefit in question back into the labour market. 'For those less finely tuned to New-Labour Speak, that translates roughly as a mixture of carrots and sticks to get the work-shy off benefits' (Economist, 28 January 2006). This positive angle of welfare reform in this area is also accentuated in the Department for Work and Pension's Green Paper on the Welfare Reform Bill: DWP, A New Deal For Welfare: Empowering People to Work (Cm. 6859; 2006) ch. 3, p. 13.
4. J. Hutton MP in the Guardian, 30 January 2007.
5. C. Pierson, 'Social Policy' in The Ideas that Shaped Post-War Britain, eds. D. Marquand and A. Seldon (1996) at 154.
6. The period in question saw a raft of legislative measures which retrenched all forms of social insurance based benefits, including the Social Security Acts 1988 and 1989, measures which in practice undermined the basis of national insurance based unemployment benefit. These measures were followed in the 1990s by the Social Security (Incapacity for Work) Act 1994, and the Jobseekers Act 1995, which further reduced the significance of social insurance in the United Kingdom social security system.
7. The main commentator referred to here is the American Charles Murray, who undertook a study into the development of what he perceived to be the gradual growth of an 'underclass' in the United Kingdom, which was first available to general readership when serialized in the Sunday Times newspaper in 1994. In essence, Murray argued that there was an increasing sector of British society which, due to remoteness from the world of employment and other factors, no longer shared the same moral values in relation to crime and the family which holds the rest of society together, and had effectively become a nation within a nation. See C. Murray, Charles Murray and the Underclass: The Developing Debate (1996).
8. See, also, F. Field, Losing Out: The Emergence of Britain's Underclass (1989).
9. Ruth Lister, for example, a leading social policy expert, has expressed some scepticism, on the entire notion of the existence of a discrete section of the population who do not adhere to the values of the rest of society. See R. Lister, 'Introduction: In Search of the Underclass' in Murray, id., ch. 1, p. 1.
10. N. Lacey, 'In Search of the Responsible Subject; History, Philosophy, and Social Science in Criminal Law Theory' (2001) 64 Modern Law Rev. 350.
11. The idea that both crimes and their corresponding punishments should be placed within their socio-economic contexts and analysed accordingly. See P. Ramsay, 'The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State' (2006) 69 Modern Law Rev. 29.
12. id., at p. 31.
13. In relation to the relatively recent emphasis on citizen's duties as opposed to unconditional rights, Dean notes that this change is reflected in the change in 1995 made to Clause IV of the Labour Party constitution, which replaced a commitment to social equality with a commitment to a society in which 'the rights which we enjoy reflect the duties which we owe.' See H. Dean, Welfare Rights and Social Policy (2002) 195.
14. This concept has been criticised by Norrie, who argues that the one-dimensional nature of this theory renders it inadequate to resolving problems of moral substance and social control which confront the judiciary in practice. See A. Norrie, Punishment, Responsibility and Justice (2000) chs. 7, 8.
15. See, also, Ramsay, op. cit., n. 10, pp. 31-2.
16. Bagaric describes how the traditional utilitarianism inherent in the sentencing process is now being viewed as increasingly irrelevant and unable to achieve the penal objectives of incapacitation, deterrence, and rehabilitation. He argues that it is the threat of punishment for breaches of the criminal law which is the most effective in preventing crime. See M. Bagaric, 'Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?' 24 Crim. Law J. 21.
17. Home Office, Respect and Responsibility - Taking a Stand against Anti-Social Behaviour (Cm. 5778; 2003), foreword.
18. id., p. 12.
19. A. Ashworth, 'Social Control and 'Anti-Social Behaviour': The Subversion of Human Rights?' 120 Law Q. Rev. 263.
20. As with the term 'underclass' discussed above, it is often difficult to establish parameters to the theory of 'communitarianism.' Broadly speaking, it entails social values which pertain to the wider community, and, if not overtly socialistic, these values go beyond traditional individual rights, and accentuate the collective nature of society, which is why it is possible for communitarian theorists to criticize those commentators who emphasise human rights exclusively in individual terms. See, for example, A. Etzioni, 'Old Chesnuts and New Spurs' in A. Etzioni, New Communitarian Thinking: Persons, Virtues, Institutions and Communities (1996) 16.
21. See, also, D. Bell, Communitarianism and Its Critics (1993).
22. See Dean, op. cit., n. 12, at p. 59.
23. I. Gough, The Political Economy of the Welfare State (1979) 12.
24. L. Charlesworth, 'The Poor Law: A Modern Legal Analysis' (1999) 6 J. of Social Security Law 89. Charlesworth makes the comparison between welfare provision in Britain in the nineteenth century, which was administered via the poor law, and the nascent Bismarckian system of social security in Germany, which rejected a punitive view of the poor as inherently feckless (p. 80).
25. Cited in J. Charmley, Churchill: The End of Glory (1993) 52.
26. See J. Harris, 'Contract and Citizenship' in Marquand and Seldon (eds.), op. cit., n. 5, at p. 133.
27. Giddens is credited as one of the originators of the 'Third Way' political strategy adopted by New Labour in the period preceding the 1997 election. See, for example, A. Giddens and P. Diamond, 'The New Egalitarianism: Economic Inequality in the UK' in The New Egalitarianism (2005) ch. 6, p. 101.
28. Examples of this may include the Welfare Reform and Pensions Act 1999, which reduced Incapacity Benefit for those in receipt of private pensions, and the clauses in the Welfare Reform Bill 2006 which aim to replace Incapacity Benefit with an employment and support allowance.
29. The so-called 'jobseeker's agreement', which applies to contributory and meanstested jobseeker's allowance. See D. Bonner, 'Jobseeker's Allowance: An Uneasy Hybrid' (1996) 3 J. of Social Security Law 165.
30. On the issues of 'actively seeking work' and 'jobseekers' directions', see N. Wikeley, 'The Jobseekers' Act 1995: What the Unemployed Need is a Good Haircut' (1996) 25 Industrial Law J. 71.
31. Thereby perpetuating the classical view of citizenship as identified by Skinner as a bundle of duties, something which is earned by some form of moral or behavioural entitlement, rather than merely a birthright. See Harris, op. cit., n. 23, at p. 133.
32. See E.M. Burns, Social Security and Public Policy (1956) 56.
33. For an analysis of this phenomenon, see T.R. Tyler and R.J. Boeckman, 'Three Strikes and You are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers' (1997) 31 Law and Society Rev. 237.
34. See C. Reich, 'The New Property' (1964) 73 Yale Law J. 733.
35. id., at p. 737.
36. Kohler, for example, has criticized Reich's theory on the grounds that it appears to be an opportunistic attempt to entrench welfare payments by bringing them within the ambit of constitutional safeguards preventing the deprivation of 'property without due process of law.' See P. Kohler, 'The Death of Ownership and the Demise of Property' (2000) 53 Current Legal Problems 237, at 241.
37. In particular against what was perceived to be the 'vagrant class', and it is argued in some quarters that poor law attitudes towards this class persist in post-war common law welfare states. See M.K. Rosenheim, 'Vagrancy Concepts in Welfare Law' (1966) 54 California Law Rev. 511.
38. Provided that the pauper was 'settled' in the parish in question, that is, they were resident in the parish in question for a period of around 40 days. This was perceived as one of the strengths of the workhouse system. See L. Charlesworth, 'How Poor Law Rights were Lost but Victorian Values Survived: A Reconsideration of some of the Hidden Values of Welfare Provision' in New Perspectives on Property Law, Human Rights, and the Home, ed. A. Hudson (2003) 271.
39. id., at p. 280. See, also, R. Cranston, Legal Foundations of the Welfare State (1983) ch. 2, which provides some evidence that local officials could be compelled by the courts to provide workhouse relief.
40. Such as a probation order, community service order or a community sentence. The definition is set out in s. 62(8).
41. The reason for the harsher sanction for recipients of jobseeker's allowance is probably because this latter category have the option of gaining paid employment, while recipients of income support are not required to be 'actively seeking work.' The varying degrees of disqualification are contained in regulations made under s. 62(4). See Sweet and Maxwell Current Law Statutes, Child Support, Pensions and Social Security Act 2000 (2000), annotations by N. Wikeley, 107-8.
42. By adding a new paragraph (1A) and paragraph 2A to Schedule 3.
43. See J. Fulbrook, 'New Labour Welfare Reforms: Anything New?' (2001) 64 Modern Law Rev. 243, at 255. Fulbrook also notes the significance of the fact that jobseeker's allowance can be completely withdrawn after one formal written warning.
44. See M. Bagaric, 'New Criminal Sanctions - Inflicting Pain Through the Denial of Employment and Education' [2001] Criminal Law Rev. 184.
45. Report on Social Insurance and Allied Services (Cmd. 6404; 1942) para. 308. The italics in this citation are those of the author of this article.
46. Which automatically distinguishes the sanctions provided by ss. 62-66 of the Child Support, Pensions and Social Security Act 2000 from those contained in Part V of the Jobseekers Act 1995 for voluntary unemployment, dismissal from employment because of misconduct, or failure to avail oneself of a job opportunity or training placement without good reason.
47. See id.
48. J. Kempfer, 'Disqualifications for Voluntary Leaving and Misconduct' (1945) 55 Yale Law J. 148.
49. Also, s. 16 of the Act which provides the power to take away the driving licenses of fathers who refuse to pay maintenance for their children.
50. It will be remembered that the withdrawal or reduction of benefits may also extend to statutory training allowances for apprentices on government training schemes.
51. Steve Webb MP, former Liberal Democrat social security spokesman, Scotsman, 18 November 1999.
52. D. Fraser, The Evolution of the British Welfare State (2003) ch. 2, at 51. In this chapter, Fraser examines the social and political history underpinning the Poor Law Amendment Act 1834.
53. Charles Younge, Chairman of the Sheffield Board of Guardians, Sheffield Times, 10 November 1855, cited in id. at p. 303.
54. See T.H. Marshall, Citizenship and Social Class and Other Essays (1950) 24. Thus, recipients of poor law relief were placed in the same position as criminals, who were also disqualified from the franchise through s. 2 of the Forfeiture Act 1870. However, Cranston has noted that in practice some of the harsher aspects of the operation of the Poor Law Amendment Act 1834 were waived by poor law officials.
55. See Cranston, op. cit., n. 36, at pp. 39-45.
56. Marshall, id., at pp. 10-27. Marshall's theory is that civic rights were achieved in the eighteenth century, while political rights were firmly established by the close of the nineteenth century.
57. Available on 〈http://www.dwp.org.uk〉.
58. See S. Bright and C. Bakalis, 'Anti-Social Behaviour: Local Authority Responsibility and the Voice of the Victim' (2003) 62 Cambridge Law J. 305, at 309.
59. On this subject, see K. Puttick, 'Strangers at the Welfare Gate: Asylum Seekers, "Welfare" and Convention Rights after Adam' [2005] Tottel's J. of Immigration, Asylum and Nationality Law 214. This article discusses primarily the compatibility of s. 55 with the European Convention on Human Rights.
60. Kay LJ, cited in id., at p. 215.
61. For a full explanation of this term, and a more comprehensive discussion of the issues relevant to this area, see P. Larkin, 'The Limits to European Social Citizenship in the United Kingdom.' (2005) 68 Modern Law Rev. 435.
62. See, also, K. Puttick, 'Welcoming the New Arrivals? Reception, Integration and Employment of A8, Bulgarian and Romanian Migrants' [2006] 20 Immigration, Asylum and Nationality Law 238.
63. Home Office, Secure Borders, Safe Haven: Integration with Diversity in Modern Britain (Cm. 5387; 2002) para. 3.2.
64. These conditions are contained in Social Security (Habitual Residence) Amendment Regulations 2004, S.I. 2004/1232. On the operation of these measures, see S. Currie, 'Free Movers? The Post-Accession Experience of Accession-8 Migrant Workers in the United Kingdom' (2006) European Law Rev. 207.
65. It will be noted that like s. 62 of the CSPSSA 2000, there is no blanket disqualification of benefits for this offence. Arguably this allows a degree of flexibility to decision-makers in these areas.
66. The term, 'three years' is defined in s. 7(1), and means within three years of the conviction in the earlier set of proceedings for social, security fraud.
67. See s. 46(1) of the Welfare Reform Bill 2006.
68. For example, the Grabiner report, The Informal Economy, available on 〈http://www.treasury.gov.uk〉.
69. DSS, Beating Fraud is Everyone's Business (Cm. 4012; 1998) 11.
70. See G. McKeever, 'Detecting, Prosecuting and Punishing Benefit Fraud: The Social Security Administration (Fraud) Act 1997' (1999) 62 Modern Law Rev. 261.
71. See G. McKeever, 'Fighting Fraud: An Evaluation of the Government's Social Security Fraud Strategy' (1999) 21 J. of Social Welfare and Family Law 357, at 362.
72. DSS, A New Contract for Welfare: Safeguarding Social Security (Cm. 4276; 1999) 15.
73. See G. McKeever, 'Tackling Benefit Fraud' (2003) 32 Industrial Law J. 326.
74. The term 'data matching' has been defined as 'the computerised comparison of two or more sets of records with the main objective of searching for records relating to the same individual.' See the Social Security Committee, Third Report, Housing Benefit Fraud, HC (1995-96) 90-11, vol. 2, Appendix 4. Thus, the Department for Work and Pensions may match the personal details of a claimant suspected of fraud with records from other governmental departments in order to identify possible discrepancies.
75. See McKeever, op. cit., n. 68, at p. 326.
76. The right to privacy which is guaranteed by Article 8 of the European Convention on Human Rights.
77. In s. 1.
78. See Fulbrook, op. cit., n. 40, at p. 251.
79. Report of the Poor Law Commissioners XXVII (1834) 263.
80. Cited in Fraser, op. cit., n. 49, at p. 303.
81. See Sweet and Maxwell's Current Law Annotated Statutes, Social Security Fraud Act 2001 (2001), annotations by N. Wikeley.
82. The Social Security Administration (Fraud) Act 1997 inserted a new s. 115A into the Social Security Administration Act 1992, the original provision which allowed this 'administrative penalty' to be chosen by a fraudulent claimant.
83. Housing Benefit is administered by the local authority.
84. S. Lister, 'Housing Benefit Sanctions for Anti-Social Behaviour' (2004) 12(2) Benefits 102.
85. (1997) 96 L.G.R. 548, 567.
86. See Bright and Bakalis, op. cit., n. 54, at p. 305.
87. F. Field, Neighbours from Hell: The Politics of Behaviour (2003) 50-51.
88. M. Wicks, 383 H.C. Debs. col. 881 (19 April 2002). Malcolm Wicks was then Housing Benefit Minister.
89. M. Wicks, H.C. Debs., Standing Committee B, col. 42 (11 July 2002).
90. Dept. for Work and Pensions, Housing Benefit Sanctions and Anti-Social Behaviour: A Consultation Paper (2003) 1.
91. See text to n. 22 above.
92. The distinction between private rented and public rented accommodation carries more import than might be immediately apparent: during the Standing Committee Debates on the Bill, there was a tacit consensus among some MPs that tenants in private sector accommodation remain relatively untouched by anti-social behaviour orders, since private landlords seem more concerned with whether the rent is paid or not. See G. Howarth, H.C. Debs., Standing Committee B, col. 15 (11 July 2002).
93. R.M. O'Neil, 'Unconstitutional Conditions: Welfare Benefits with Strings Attached' (1966) 54 California Law Rev. 443. Possibly, writing in the mid-1960s, the political party which would have been at the forefront of O'Neil's mind was the Communist Party.
94. id., at p. 455.
95. For further examples of how social security and welfare may be used to control and modify behaviour in an American context, see L.A. Williams, 'The Ideology of Division: Behaviour Modification Welfare Reform Proposals' (1992) 102 Yale Law J. 719,
96. and R.J. Chilton, 'Social Control through Welfare Legislation: the Impact of State "Suitable Home Law" ' (1970) 5 Law and Society Rev. 205.
97. See Field, op. cit., n. 81, pp. 95-6.
98. id., at p. 99.
99. id., at p. 96. This point has also been made in a United States context above.
100. This analogy is derived from a quotation by Margaret Thatcher, cited in N. Timmins, The Five Giants: A Biography of the Welfare State (2002, 2nd edn.) 431..
101. id., p. 519.
102. R. Plant, 'Supply Side Citizenship' (1999) 6 J. of Social Security Law 124.
103. As with the CSPSSA 2000.
104. As was attempted in the abortive Housing Benefit (Withholding of Payment) Bill 2002, and is now contained in the Welfare Reform Bill 2006.
105. J. Le Grand, 'Knights, Knaves or Pawns? Human Behaviour and Social Policy' (1997) 26 J. of Social Policy 149.
106. The 'pleasure-pain' principle so central to neo-classical economic theorists has thus been enshrined in social security legislation. For an in-depth analysis of this theory, see P. Jones and J. Cullis, ' "Individual Failure" and the Analytics of Social Policy' (2000) 29 J. of Social Policy 73.
107. For a more detailed analysis of the subject of the 'underclass', see C. Murray, The Emerging British Underclass (1990).
108. H. Dean, Social Security and Social Control (1991).
109. See, also, Murray, op. cit., n. 7.
110. Dean, id., at p. 64.
111. P. Townsend, Poverty in the UK (1983) at 823.
112. The speech detailing this suggestion is to be found at 〈http://www.number10.gov.uk〉.
113. See McKeever, op. cit., n. 68, at p. 363.
114. See A. Ashworth, 'Is the Criminal Law a Lost Cause? (2000) 116 Law Q. Rev. 225.
115. Consultation by the Department for Work and Pensions on Housing Benefit Sanctions and Anti-Social Behaviour: Response by the Child Poverty Action Group.
116. See 〈http://www.cpag.org.uk/cro/Briefings/0803_hse_bene_con. htm〉.
117. See Social Security Advisory Committee Annual Report 2003, paras. 1.17-1.18, at 〈http://www.ssac.org.uk〉.
118. id., at para. 1.1.
119. R. Plant 'Needs, Agency and Rights' in Law, Rights, and the Welfare State, eds. C. Sampford and D. Galligan (1986) 22-48.