The government, by definition, owes a duty of care

I wonder if it is possible for those MP’s who consider many of their constituents to be lazy, scrounging, thieving, irresponsible and generally feckless, to be in a position to understand any of the consequences of their policies.

To judge by a recent ‘Guardian’ report this is actually the only possibility that seems remotely comprehensible:

[Heather Wheeler, the Homelessness Minister] does not know why the number of rough sleepers has increased so significantly in recent years [and] said she did not accept the suggestion that welfare reforms and council cuts had contributed to the rise.

So, without any evidence at all, she seems unaware of any of the effects of, say, reductions in the Disabled Living Allowance and Personal Independance Payments, Child Benefit, Tax credits, the Education Maintenance Allowance, the Education Support Allowance, Council Tax Benefit, Housing Benefit and all the time building less and less social housing and introducing the bedroom tax for good measure. That’s quite a list to grasp – and maybe she finds it difficult, but what is absolutely sure is that these ‘improvements’ were the work of her government and them alone.

Perhaps it is because she worked for Lloyd’s Insurance for 10 years and that her picture shows plump and well fed features that I have even less confidence in her mastery of her brief.

There is a similar sort of report on Kit Malthouse, (a DWP minister) and his complete failure to grasp the misery of foodbanks. While he harks back to his youth, he fails to understand the damage his government has wrought since, still insisting that in 2018, work is the route out of poverty.

To this charge sheet must be added the severe crises in the NHS, fire safety and building regulation failures and what is coyly referred to as ‘excess winter mortality‘, where poverty is the most prominent component.

A recent US study found that “poverty can….cause stress that shifts attention and steals cognitive bandwidth.” It seems that three good meals a day and a substantial salary have a similar effect on empathy. (Indeed it has also been suggested that if you receive a regular income from property, you are ten times less likely to develop an anxiety disorder.)

Still, in the 21st century, we are unable to provide what John Locke considered our rights three centuries ago, that under natural law, all people have the right to life, liberty, and ownership and this social contract with government was what enabled the prevention of revolution.

Although this comprised one of the basic tenets of the American constitution, I fear it is far too romantic to suggest that Britain could now suddenly decide to have a similarly written constitution, but in its absence, I think an incoming government could reasonably suggest something else.

In law, as we all go about our lives, there is a legal principle of a duty of care.

This requires adherence to a standard of reasonable care in our everyday activities, particularly where our actions might reasonably be foreseen to harm others. This applies even to the police when they are making an arrest.

Continental practice is not dissimilar although the French equivalent of a failure to assist a person in danger is more clear cut – if usually less onerous.

So it would be entirely reasonable for this well accepted concept to be a matter of policy for an incoming government. It could pass legislation to state that a government has a duty of care towards all its citizens (notably perhaps, in preference to its banks or corporations).

I cannot see how this would provoke any properly argued opposition. It would simply be a case of legislators binding themselves to a straightforward duty of care towards all their constituents.

Something one might have thought they should already be doing.

And of course, if the Conservatives had ever, perchance, heard of John Locke, it might help prevent social dissent – or even revolution.

 

Comments

  1. Mo Stewart -

    Hello Peter
    See Danny Dorling’s new comment in ‘The Conversation’ which identifies the ‘rapid rise in mortality in England and Wales in early 2018 – an investigation is needed’.
    https://theconversation.com/rapid-rise-in-mortality-in-england-and-wales-in-early-2018-an-investigation-is-needed-93311

    Remember the gvt will disregard any academic or investigative report that demonstrates that social policies and welfare reforms are causing death, despair and unnecessary preventable harm.

  2. Peter May -

    Yes, I’m aware of that, too. It is quite appalling.
    That is why I think that Labour should enshrine the government’s duty of care towards every citizen in legislation

    1. Andrew Dickie -

      Peter, you are, of course, entirely right that an incoming Labour Government should enshrine in law the principle of duty of care towards every citizen.

      For me, however, the irony is that such a duty of care is, I believe, already implicit in our common law, from which derived the later, more detailed and complex law of obligations, as exemplified in the modern laws of tort and contract.

      It’s possible that I am wrong here, and that someone with far greater legal knowledge than mine will come along and contradict me, but the idea that the common law contained an implicit concept of duty of care seems to me to derive from the practice of feudal obligations, which itself is a reflection of the mediaeval concept of “the great chain of being” (Marx, of course, would have said the reflection was the other way round, and that “the great chain of being” was just an ideological reflection of feudal obligations).

      Anyway, under the theory of “the great chain of being”, every sentient being (indeed, non-sentient) was in a connected chain of existence, from lowest to highest, from mere insects up to God, an arrangement that was reflected in the chain of feudal obligation, in which every person had a “lord”, who himself depended on another “lord”, up to the monarch, who depended on God.

      Importantly, this implied a feudal obligation in both directions – you served your lord, and in return he offered you protection – effectively, a “duty of care”. Of course, the lower down the chain you went, the greater was the obligation (eg on villeins and serfs) and the thinner the protection, so that it was probably more honoured in the breach than the observance.

      However, the fact remains that in theory your “lord” had a duty of protection – effectively “of care” – towards you, which was carried over, if not explicitly, then implicitly, in the writing of political theorists, such as John Locke.

      Put simply, I would argue that any government, by the very fact that it presumes to take on the task of governing, also thereby assumes a common law duty of care towards its citizens. to have this clearly spelled out in law, however, seems to me to be a prudent measure to guard against the militant stupidity (at best, unless it is actually complacent vindictiveness) of specimens such as Heather Wheeler.

      1. Peter May -

        Agreed. I was fairly certain, as you confirm, there was a common law right to a duty of care (if arguably after only a fashion, as you suggest might be the case). But although I might give it a go if I won the lottery! for me I think the judicial decision is unlikely to rescind numerous legislative enactments – declaring them in effect illegal, much as I think they are. The days have passed, I fear, when Denning could say say of his colleagues that he finds his work much more difficult because he’s trying to administer juctice whereas they are trying only to administer the law…
        Hence my suggestion of a ‘duty of care’, in order to, in effect, ‘amend’ the constitution.
        Much agree, too, with the sentiments in your link.

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