The Rape Clause, Welfare, Needs and Resources..Some Thoughts

The Rape Clause, Welfare, Needs and Resources..Some Thoughts

I’ve been troubled by the recent political debate in Scotland over the rape clause. For those who may have missed it or are not in the UK, the ‘rape cause’ is a section of the UK welfare system bureaucracy which that requires women who were raped and subsequently conceived a child, to complete or have a form completed in order to access welfare payments in the form of child tax credits. Although some have take a different view, for many including women’s groups, NGOs, advisers, child campaigners and progressive politicians, it is self-evident that this policy is wrong. The debate has been particularly fierce in Scotland, and the Scottish Conservative Leader Ruth Davidson attacked for her support for the clause whilst all main political parties except the Tories in Scotland oppose it. 

The words I’ve seen used to describe the policy include: abhorrent, vile, inhumane, disgusting, ‘has no place in civilised society’. And I find myself in a place opposite to where I would normally be, disagreeing with people I normally agree with. Because, it is not self-evident to me that the policy is wrong, (but I certainly admit I may be wrong on this). I suspect it is the certainty of others that is bothering me about the issue, and what I see as muddled thinking about fairness. So, in this blog I want to offer a few tentative thoughts.

 

By Way Of Background 

I am not comfortable writing about a issue so serious as rape and using the debate around it to illustrate broader ideas about fairness. So let me say from the start, that clearly rape is an appalling crime, as much about power and humiliation as it is about sex. And hopefully regular readers will agree that I am a supporter of fairness, justice and opportunity, with at least some radical ideas, such as my ideas on a fair society, support for the poorest or ideas on basic income.

I should also make it clear that I oppose the Tories cutting of welfare payments, I think the coalition government freezes to benefits were a mistake, and I think the entire UK welfare system is in need of urgent reform with a much greater focus on the needs of the least well off.

The clause itself arose from a UK government decision to limit child tax credits to the first two children (note this is from a certain date and applies to new children conceived not retrospectively). In doing so, the UK government then introduced a series of exemptions to make the policy (as they saw it) fairer and more just. Those exceptions include multiple births, adoption and non-consensual conception.

So why on earth would I even pause in my condemnation of the clause, let alone question others on it? After all Kezia Dugdale was widely praised across the political spectrum (a rare thing) for her speech to the Scottish Parliament on the issue. Campaigners say it shames and humiliates rape victims, may set back their mental health in having to relive the experience, stigmatises and picks on victims and lower income families and doesn’t even save much money. After all the number of women with more than two children who are raped and then conceived will be relatively small and the costs of paying them low  (estimates are £20-75m per annum in Scotland) so this is seen as a new low from a despicable and heartless UK/Tory government, one in a long line of despicable, heartless and even evil decisions.

 

So Why Not Oppose the Clause? 

I’m one of the few non-Tories who isn’t immediately convinced  by the Dugdale speech, or the ‘rape clause ‘ campaign, or why it’s self-evident a 2 child limit for child tax credits is an egregious wrong. If people could bear with me, I want to try and strip out the emotion, and the labelling, to allow me to understand what the arguments are. As far as I can see there are six possible arguments which I list below. I’d like to pick them up one by one and offer a view on each. The possible arguments I can think of are:

1. The requirement for proof is in principle reprehensible?
2. The current or likely plans to implement the testing will be intrusive, humiliating or in some other way unacceptable when delivered?
3. The cap on two-children non-retrospectively in one element of the welfare system is unacceptable either in principle or because of its impacts on family or child wellbeing ?
4. The two-cap limit is just too low?
5. The principle of benefit caps is just wrong and any and all welfare has to be based on need?
6. Some other reason…?

 

Argument 1- The requirement for proof is in principle reprehensible

This is what is apparently self-evident to most. The argument is that even considering asking women who have been raped to ‘prove it’ is just wrong and sickening. I can certainly see why intuitively people would think so. My problem with this is that if we don’t do so, we are possibly opening up the system to fake claims, which although it may seem callous and wrong to even suggest may happen, is a possibility. And I would point out that for other parts of the system as I understand it, such as criminal injuries compensation, a more intrusive process is required. Now of course two wrongs don’t make a right and those who make argument 1 may simply be unaware of how other parts of the system operate or may not care. I suspect for many people even discussing this is just wrong and nothing I can write will change that, so if this is the reason for objecting to the rape clause I can obviously respect that, whilst I just disagree. In my view, rightly or wrongly, whilst we can and should boost the resources available for welfare, and while we can and should consider alternatives such as basic income schemes, whilst we have the current system, it is legitimate to consider in principle asking  for some form of evidence in order to support claims, no matter how sensitive. However I am talking about that in principle, rather than in practice so perhaps argument 2 is more compelling?

 

2. The current or likely plans to implement the testing will be intrusive, humiliating or in some other way unacceptable when delivered?

Advocates for women, those who are victims, those who provide support services have all argued that the current proposals are intrusive, and will set back the victims by forcing them to relieve the trauma. I am certainly not qualified to judge this and obviously respect the views of those who advocate for rape victims. If the evidence was compelling that the process proposed had this effect, then I think argument 2 becomes compelling. To date, I’ve not seen evidence from doctors or social workers that suggest the evidence is that. If it did, then yes, I think the proposed system should be changed. But note that argument 2 isn’t saying that asking for evidence is wrong in principle, just that it is wrong in practice. That means, presumably, that if you only object to the clause on practical grounds, you will be willing to support it if the current process can be changed in a way you find acceptable. If it isn’t possible to agree on and find such a system, then I agree the clause should be scrapped.

 

3. The cap on two-children non-retrospectively in one element of the welfare system is unacceptable either in principle or  because of its impacts on family or child wellbeing ?

This argument would make the claim that limiting welfare payments for children is just wrong in principle. Or that whilst in principle it might be ok, the impacts on families or child wellbeing in practice is unacceptable. I suspect many who feel strongly about arguments 1 and 2 also support argument 3.

Remember that the changes being introduced are not retrospective, so that we are not talking about a situation where current families with more than two children lose these benefits. The situation applies from April 2017 and for new children after that date, and excludes families where, for example, twins were born unexpectedly where two kids already exist.

For information, ONS stats tells us that currently about 15% of families have three or more kids– I don’t have the stats to hand on that breakdown by income decile but am willing to bet that on average poorer families have more kids.

If the policy was being applied retrospectively, I would be opposed to it as it would jeopardise the welfare of kids whose parents had legitimately made plans based upon an expected income level. Now, many advocates will no doubt claim that the removal of the freedom to have more than two children and have the state support that, will jeopardise those future kids’ welfare as well. I want to come back to that below.

But it seems a difficult to me to sustain an argument that a change which applies only to future decisions, and which is argued is just wrong in principle, is clearly wrong and nothing more needs to be said. Why is it wrong in principle? Why is it wrong that the state draws a line beyond which it will not support family decisions made with the knowledge of the rules on support? (Remember we’re setting aside child welfare for now). I suspect people think so because of the impact on children’s welfare or because of their views on fairness, which I tackle below.

4. The two-cap limit is just too low?

I have sympathy with this argument. If many families are already 2-child families, then a 2-child limit does not account well for unplanned pregnancies or loss of income through illness or redundancy, and the evidence is that immigration for the moment is increasing family size. It is on that basis possible to make an argument that a 2-child limit is discriminatory towards immigrants, and as I noted above, it seems likely to me that poorer family are likely to have more children. Indeed this is one of the main arguments made by Alison Thewliss, a leading campaigner on the issue :

“As of midnight last night, a two child limit on child tax credits and universal credit – which is tantamount to social engineering – came into force. It largely penalises families who are already in work, so this has very little to do with reducing the welfare bill but is, instead, an ideological attack on the lowest earning families in our society.”

So it seems to me, a more costly, but also fairer change, would be to make the limit at 3 children- though this would affect a much smaller number families and presumably saves the treasury much less cash, which is why it wasn’t proposed.

But hold on! We’re now a long way from angry rhetoric about policies being vile and disgusting aren’t we? We are now debating changes not in principle but in practice, accepting that the state has the right to limit welfare payments according to public rules, and are merely debating the detail of those rules aren’t we?

Not so fast. I think whilst the debate might be less emotive when talking about the level of the cap compared to the overall rape clause debate, there is still real anger about the change, reflected in Alison Thewlis’s comment quoted above. I think many on reflection might say that the rape clause, shocking as it is for them, is a symbol of the problems with the direction of UK welfare policy, that can be so warped and morally bankrupt as to come up with such obvious outrages and unfairnesses in the first place.

So we now need to discuss the final element of the possible arguments against this, argument 5. Here I struggle but will try and set out what I think as clearly as I can.

 

5. The principle of benefit caps is just wrong and any and all welfare has to be based on need

If readers have made it this far, my comments may have invited a mix of scorn, hostility, disbelief that a so-called liberal could be even debating these issues, and perhaps a sense that it is wrong for a man to be pontificating on issues like this. To re-iterate, I intend no disrespect to victims, or to women, or those whose expertise lies in supporting them. What I am trying to do is understand why people may feel so strongly about this issue, debate the arguments and offer my views.

In discussing argument 3, I set aside concerns about child welfare arising from the 2-child policy. I now want to consider them directly as part of a discussion about what fairness actually means.

There will always be limits to resources in society, no matter how wealthy or successful. A fair and just society is ideally one where people feel we are genuinely all in this together, that they have the resources, the opportunities and the support from society and government to achieve their ambitions. This includes a proper ‘insurance scheme’ to manage a range of risks that otherwise may overwhelm the individual. I previously blogged on this at length here and here and here:

Equality matters because ultimately, people need dignity and respect, they need the ability to execute their life plan, they need a sense of fairness in all of the rules and institutions and processes of society. ‘

So, we expect and need government to help us deliver a fair society, and we expect and need government to help us manage risks that may otherwise ruin our plans and render our lives worthless.

But note that in any genuinely fair society, we are not promising unlimited resources for any citizen. On the surface, it might seem to be the job of government to make sure its citizens are happy, that they have the resources they need and that their ambitions are met. Many people think that we need to equalise ‘welfare’ or ‘wellbeing’ or ‘success’ or equalise opportunity. But a bit of reflection will show that this is too shallow and glib.

Briefly, if someone has extravagant desires and wishes in order to deliver what (they say) is a happy or successful life, or maximise their welfare, are we as a society through government duty bound to meet those needs in delivering our duty of fairness? If the person in question wants a lifetime of free champagne and cigars and a mansion whilst not working, because he or she says this is he choice of life that will make them as happy as everyone else (and lets assume objective evidence of some kind supports their claim that they are indeed that sort of person that enjoys luxury and hates working), are we required to deliver that in the interests of fairness and equal welfare? No, obviously not, that would be absurd.

Equally, if we start out in society giving people equal resources but some deploy them to increase their skills, success and wealth, whilst others spend them on drinking, surf-boarding and gambling, are we required at a later date to take resources from the successful person and give it to the idler? Again, and for rather more complex reasons that I will set out another time, but which surely many would accept are intuitively right, the answer is no. Or at the very least, our decisions on fairness and redistribution need to take account of personal responsibility, whilst compensating for disability, lack of opportunity or other factors holding people back.

So, a brief examination of fairness and equality in a just society tells us that whilst we need to design society for fairness and for supporting people in their life plans, we are not required in the interests of fairness to meet their every whim, and to compensate later those whose life choices did not enable them to deliver the same level of success as someone who chose to work harder, spend more of their time and effort on material success and so on. These are not criticisms of the less successful or those who chose to idle away their lives- that is their choice and a liberal approach respects it, as long as it does no harm to others. But a liberal society based on fairness recognises limits, and once a just and acceptable level of resources has been distributed, expects the person involved to take special responsibility for their own life and its outcomes.

 

Ok, so what? 

Before I go any further, it is worth saying that this is a very brief version of arguments that readers will find in John Rawls’ works, and especially Ronald Dworkin in his work on Sovereign Virtue. If what I have briefly written here is unconvincing that is my fault and not theirs. Secondly, it is worth saying that of course we make special provision for those who have disabilities, in order to provide them with the means needed to live a life of meaning and purpose.

So why the extended diversion into the theory of equality? Because it should be clear that essential to a discussion of fairness and welfare, is a clearer understanding of need, and whether that need is ‘genuine’ or trivial, excessive or in some other way not justified. If we expect humans to take responsibility for their own lives, and do not owe them an unlimited transfer of state resources under conditions of plausible freedom, then we can begin to see that argument 5 (that a welfare cap is wrong in principle and that all payments need to be based on need), does itself need some explanation and qualification.

If by need we meant the extravagant unnecessary claims of a person wedded to champagne and cigars, then clearly we do not need to pay them under a welfare system, and no one would suggest that we do. But buried in the assumptions of many that welfare caps are wrong in principle, is that the current welfare payments are indeed based on need, and that there is an objective ‘reasonable’ standard by which we can judge distribution.

That may be so, and some academics attempt to set such objective standards, based upon thinking such as minimum income needed for sizes of families to take a full part in society, or references to percentage income relative to a median income, or other bottom up calculations of consumption based on cost. I don’t mean to suggest that such calculations are wrong, or have no value.

But what I am trying to suggest that the concept of fairness in welfare is less simple than it seems,and that we need to think hard about what objective standard we are using in redistributing resources from one group to another. If we had no benefit cap, are we comfortable that it would be possible for a family on benefits to earn more than average wages, which in practice are more than most families earn because of the effect of high-earners? What about the infamous cases of families of 10 living at state largesse on incomes far in excess of ordinary people? Often progressives rightly hate the demonising of welfare scroungers, and in practice such cases are rare, but that’s beside the point- the average citizen is surely right to feel instinctively that something has gone wrong if such situations are allowed routinely.

Since we know from above that 85% of UK families have two children or less, and the current benefit cap is set to average earnings, there is prima facie a case to say that limiting transfers to other families so that their income does not rise above this, is fair.

Similarly, if we consider objective standards to be important in setting the level of welfare, and if the benefit cap allows families to earn the average wage of families across the UK, what is the problem with either a general or a two child cap? The argument runs that we do not have general responsibilities to fund unlimited desires of families or individuals, that capping transfers of income to limit those to that of the average is just the sort of objective standard we need, and that in that case the whole approach is fine.

Of course, things are not so straightforward. Let’s now reintroduce the needs of children. Children are just born into families and do not chose their life circumstances. It is not their fault, but they will surely suffer the consequences if they are born into a large family (say 5 children) whose income is capped at average family levels for those with 2 children. In this case our seemingly simple objective test of fairness- linking transfers to only allow for average earnings- appears wrong in the sense that children born to poorer families will potentially suffer. And alert readers will surely criticise me for suggest in one place that universal income including inalienable payments to children is a good idea, but that in another place arguing that a cap on welfare payments of 2 children is perfectly acceptable.

One further complication is that in one sense, it matters not a jot what the level of child tax credits are. After all, child benefit payment itself is not capped per child, and even if it was, it is the overall level of income that matters. None the less, the argument remains that larger poorer families may suffer under any plan to cap welfare. A simple way out is to promise higher wages via a higher national minimum wage, thus reducing the need for state support via income transfers. But of course, need is relative so its likely that any higher level of wages might also raise expectations of resources needed to take part in society, thus possibly eliminating some or all of the benefit of the higher national minimum wage. And anyway, whilst worthwhile in its own right, this route merely dodges the difficult question under discussion.

But yet again, do not parents owe some sort of debt to society, some sort of responsibility to the rest of us, to ensure that they limit the number of children to what they can afford? Isn’t that a basic responsibility we can all support? Well, on the surface yes, but what about unexpected changes to income or health that mean suddenly a large family can’t receive the income expected. What about all that talk about government owing a debt to its citizens to ensure that it insures for the risks that its citizens can’t manage on their own. And what about the dignity and life chances of children who did nothing to deserve the poorer life chances and circumstances they may be born into?

So, after an extended discussion, what to conclude?

 

Readers, I don’t know…

I confess these issues are beyond me at the moment. I started out with the contentious claim that maybe, maybe the rape clause might be justified or at least that it wasn’t as self-evident as people claimed, and that the issue was in at least some aspects an empirical not an ‘in principle’ matter. I moved on to discuss the theory behind fairness, and gave a brief (an therefore probably garbled) view of the issues around fairness, and the limits of our responsibilities to each other through state and government, given the need for people to take responsibility for their own lives and the consequences of that.

But whilst I think that ‘personal responsibility for life’ argument holds for adults, it is much more difficult to sustain for families who have needs that depend on the number of children they have. And so I am stuck.

On the one hand I’m clear that society does not owe a duty to meet the life plans of all of its citizens no matter how costly or thoughtless- instead it owes a duty to ensure that by some reasonable benchmark, people are provided with the support and resources and social resources to achieve their life plans. It seems plausible to me to argue that for people with no children, a benefit cap that ensures that they have no higher incomes when unemployed or unfit for work, than those working full time, is prima facie fair. This would of course exclude those with disability or other special needs. It seems fair to me because if they claim to have higher needs to support their maximum happiness, or welfare, or ‘success as a life-plan’, then the state can reasonably respond by saying it has taken steps to ensure that up to the average levels of income are available, and that no more are justified,with the implication that in this case the individuals needs are not justified, or at least it is not justified that other citizens (via the state and government) should support them.

On the other hand, children bear no responsibility for the life circumstances into which they are born, and should not be unfairly punished simply because thoughtless, or unlucky or unhealthy parents are deprived of welfare payments needed to ensure their children have the life they deserve and the resources they need.

So, for the moment, I can only summarise by saying I just don’t know from a theoretical perspective how to reconcile a conclusion about personal responsibility with an argument about need where children are concerned. It seems to me these sorts of discussions point to a fundamental problem with at least three things:

  • the intrusive complexity of the existing UK welfare system
  • the lack of rationale behind why we make payments in the way we do, and the subsequent emotive arguments that draw more on populism, polling and focus groups than theory, and don’t seem to be able to say what fairness and equality of resources actually means in a coherent way
  • the particular problems of trying to resolve the responsibilities of parents to society with the needs of the children born to them, within the content of a capped, rules based welfare approach.

For the moment, it seems to me that if we’re unsure, we should err on the side of the child. So, until I can work out my thoughts more clearly, I would either scrap the 2-child limit, or raise it to 3. Not very convincing I admit. Thanks for reading.

Author: DaveGorman

An Englishman longtime in Scotland, interested in new ideas for liberalism that recognise our challenges in the 21st century. Loves clouds, ideas, environment and applying liberal thinking to make things better. Speaking in a personal capacity of course.

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