The Big Society - Not Just a Harmless Gimmick

Every Government likes to have some sort of underlying theme. The motivation behind Margaret Thatcher's administration was always economic liberalism and the maximisation of individual freedom, even at the expense of social cohesion. Tony Blair wanted to govern from the 'radical centre' with the idea of making public services better by opening them up to competition and market forces. The central policy direction of this Government is undoubtedly David Cameron's idea of the 'Big Society'.

Perhaps the biggest problem with the 'Big Society' is that no-one really knows what it means. My interpretation of Mr Cameron's speeches is that it seems to refer to an emphasis on volunteer groups and individuals taking over public services. Indeed, one of the key intellectual contributors to the Big Society, Philip Blond, has often spoken of it encompassing worker co-operatives and other mutual means of ownership.

Not many people object to the goals of the Big Society. Everyone would like to see more people volunteering. The bonds of social commitment are inevitably strengthened where people willingly decide to give up their free time to help those less fortunate than themselves. Worker co-operatives would also be supported, especially on the left-of the political spectrum.

So why am I so uneasy about the Big Society?

My problem is that Mr Cameron is trying to pull the wool over people's eyes. The Comprehensive Spending Review resulted in a 28% cut in the local government budget. This represents a huge reduction in spending on local services. Councils are under a statutory duty to provide certain essential services, such as education and transport. In addition, many Councils are actively involved in the promotion of other projects, such as youth work and mental health support. They carry out these additional services by receiving modest central government funding. Given the whopping cut in the local government budget, the time is up for these extra facilities. There is simply no way in which a local authority will be able to maintain additional services in addition to their statutory commitments when faced with a 28% cut in funding.

This is why senior charity figures, such as Dame Suzi Leather, Chair of the Charity Commission, and Dame Elisabeth Hoodless, Chair of Community Service Volunteers, have argued so forcefully that Mr Cameron's Big Society agenda is a sham. How on Earth are people going to be able to effectively volunteer if the financial support is not there? For example, as a result of the Government's cuts, many libraries are being forced to close. As Dame Elisabeth asked, how are people supposed to volunteer in the local library if it is being closed down?

These are the uncomfortable questions about the Big Society that Mr Cameron cannot answer. The truth is that his destructive cuts package is wrecking any chance of a genuine culture of volunteering and civic engagement developing in this country.

Conservatives have sought to blame the need for the massive cuts in public spending on the last Labour Government. Here again, therefore, we see the great lie of British politics. I have argued against this before but just in case anyone is any doubt: Labour did not cause the banking crisis. The bankers caused the banking crisis.

The fact of the matter is that before 2007, when the financial meltdown began, Britain had the second lowest debt in the G7. So it's false to say that the Labour Government's reckless overspending created the deficit. Furthermore, up to this point, the Conservatives pledged to match Labour's spending plans. So they didn't think it was reckless overspending either. The other governing party, the Liberal Democrats, were actually in favour of increasing public spending. Any claim by the Government that the deficit is the product of years of Labour indulgence with the public finances is consequently (a) wrong, and (b) hypocritical.

Why did we end up with the largest debt after the financial crisis? The answer is simple. Britain was the most reliant on revenues from the financial services sector in the City of London. When the City went into sharp decline, so unfortunately did the entire British economy. The Government was forced to spend millions bailing out the banks while hundreds of businesses collapsed as a result of being unable to benefit from credit supplied by financial institutions. The Labour Government should take some blame for putting all our economic eggs in one basket by being so dependent on financial services. However, both main parties were to blame for this, none more so than the Tories who began diverting resources towards the City and away from manufacturing in the 1980s.

Mr Cameron is undermining his own Big Society by his massive cuts agenda. His ideological commitment to shrinking the state will always come before his desire to support civic engagement. He is seeking to convince people that he would love to see more volunteers but he has to clean up Labour's mess. Don't believe him.

Why We Need Strasbourg

Arrogant. Smug. Self-satisfied. These are all adjectives that could be used to describe John Hirst, the principal campaigner for the rights of convicted prisoners to vote in UK elections. Hirst was convicted of killing his landlady back in 1979 with an axe. Despite only receiving a 15 year tariff, Hirst went on to serve 25 years after committing a number of violent offences in jail. Following his release in 2004, he has made it his life's ambition to secure the right to vote for jailed offenders.

Anyone that has heard Hirst give interviews will no doubt be repulsed by his sense of entitlement. He is a man who has committed one of the most unconscionable crimes in society but nevertheless feels free to demand rights and privileges on the same basis as law-abiding citizens. Particular revulsion can be attributed to Hirst's description of the judgment of the European Court of Human Rights (ECtHR), ruling the UK's blanket ban on prisoners voting to be unlawful, as 'his' judgment. For all his cocky remarks, however, Hirst has made one solid point. Public opinion is absolutely irrelevant in upholding human rights.

If you talk to members of the judiciary, most will frankly admit that public opinion is a consideration when decisions are made. This is particularly so in sentencing in criminal justice, where many judges are afraid of being seen as 'soft on crime' by passing a lenient sentence. The extent to which public opinion should be a legitimate factor in ordinary judicial decision making is debatable. What is clear, however, is that the views of the majority should have no impact in the interpretation and application of human rights.

This is so because human rights are about the protection of the individual against the state. The very reason the European Convention on Human Rights (ECHR) was founded in 1950 was to ensure that individuals had binding protection against the tyranny of the majority, which had been so clearly dominant in Nazi Germany and the Soviet Union. Majoritarian views cannot and should not alter fundamental human rights. Accepting that principle sometimes involves taking unpopular decisions like letting suspected terrorists walk free on the streets, or allowing people like Hirst to visit the ballot box alongside decent citizens.

It is very difficult for domestic judges to remain insulated from public opinion. Lord Phillips, President of the Supreme Court, recently claimed that judges were totally detached from the political arena and made decisions entirely according to the law. This is clearly false, as a cursory glance of the law reports in the area of human rights will reveal to you. Judges of different political persuasions can differ markedly on issues of liberty and security. Whenever a significant ruling is made by the Supreme Court it is almost inevitable that the members of the court will have considered the front-page implications the next day. They are first and foremost British lawyers, who have grown up in British society with British morals and values.

Human rights, by their very nature, are universal. A person's right to a fair trial should be the same whether he is in England or Saudi Arabia. As a result, there cannot be any scope for the tailoring of human rights to particular national concerns. It is true that states, under the ECHR, have a 'margin of appreciation', within which they can make their own judgments on aspects of human rights law. However, this margin is clearly circumscribed so as to prevent individual states denying people fundamental liberties, such as the right to vote in elections.

As such, it is essential that there is some checking mechanism to ensure that individual countries respect the key principles of the ECHR. A right-leaning think tank recently called for the UK to remove itself from the jurisdiction of the ECtHR, claiming that it was unable to understand the particular morals and norms of the UK in certain areas. However, the peculiar characteristics of nation states should be an irrelevant factor in applying human rights law. In order to guarantee compliance with the Convention it is necessary, therefore, to have an independent tribunal in place to consider a case without all the pressure and scrutiny involved in domestic proceedings.

Judges in Strasbourg are far less likely to take into account the views of the British public when making rulings about the provisions of the ECHR. Jack Straw, writing in The Times, has used this is an argument for refusing to abide by the ECtHR's judgment on votes for prisoners. By contrast, this is exactly why we should submit to its jurisdiction and accept its rulings with good grace. Domestic judges, for all their independence and intelligence, are inevitably more liable to be swayed by majoritarian tendencies than those from different countries, backgrounds and cultures. This is an invaluable safeguard in human rights cases, where the only bulwark between tyranny and freedom may be a person in a gown sitting in a court.

Law, Love and Marriage

The most senior family judge in England and Wales this week called for unmarried co-habiting couples to be given the same rights on separation as divorcing spouses. Sir Nicholas Wall, President of the Family Division of the High Court, argued that those who have lived together in a relationship should have entrenched legal rights governing the distribution of property when they break up. His intervention is the latest contribution in a debate that has vexed family and property lawyers for some time now.

When married couples get divorced, both parties are entitled to a share of the marital assets. Usually, this will involve taking a percentage of the value of the family home. Each party's share is based on a number of complex factors but the general rule is that both are entitled to equal division.

The historical position in relation to unmarried co-habitees is that there has been no rights for either party to make claims on the other following separation. This has changed in recent years following the ruling of the House of Lords in Stack v Dowden (2007). In this case, the House of Lords held that when co-habiting partners are the joint legal owners of the family home, but have not made any express declaration in relation to their beneficial interests, there is a presumption that both parties own the house in equal shares.

Therefore, if you register property in joint names, the starting point is you both have 50% ownership. This is the case even if one person has bought the house outright. That party would need to show that he or she had made an exceptionally high contribution in order to justify departing from the equal division principle.

As a result of this, I was surprised to see Sir Nicholas making the case for more rights for co-habiting couples. In his view, the current state of the law, despite the ruling in Stack, does not do enough to help the weaker party (usually the woman) when a relationship comes to an end. In support of this view two points can be made. Firstly, the ruling only applies to situations where the home is registered in the parties' joint names. As such, if the other co-habiting partner is not a joint owner, there is a presumption that they are entitled to 0% of the beneficial interest. Secondly, in order to enforce rights under Stack, the co-habitee would have to resort to the complex law of trusts, rather than the more sensitive provisions of family law.

As someone who profoundly disagrees with the decision in Stack, I simply cannot see the justification for imposing yet more obligations on couples who have expressly declined to enter into marriage with all the legal responsibilities that entails. In my view, where two people choose to live together in a house purchased in joint names, it should not be automatically presumed that they intend to be joint beneficial owners. It is true that if property is purchased in joint names, it is often the intention of the parties to consider themselves to have the property on equal terms. However, this surely only applies during the relationship itself. Once that relationship has come to an end, the very fact of joint registration should not give rise to a presumption of 50% ownership.

It is open to the parties at any time during the relationship to expressly declare themselves to be joint beneficial owners. If they do this, that will be conclusive. The fact that the parties have chosen not to do this should be regarded as compelling evidence that they intend to share the property in some other way. In the absence of such a declaration and marriage, the state has no right to impose these obligations on two adults.

Critics of this view would perhaps claim that such an approach pays insufficient attention to the needs of children of co-habiting partners. However, courts must consider the needs of the children under Schedule 1 to the Children Act 1989, which allows judges to make a number of orders in relation to property where there are young children involved. Indeed, Baroness Deech, Chairman of the Bar Standards Board and senior family lawyer, made this point when responding to Sir Nicholas' comments during the week.

Whatever way one views the debate, it cannot be disputed that if Sir Nicholas' suggestions were implemented, the distinction between marriage and co-habitation would be sharply eroded. If two people wish to enter into a marriage and put their relationship on a firm, legal footing they should be free to do so. If, however, they don't want the legal and social implications that come with marriage, they should be free to live without it. The different regimes involved in the classification of property rights guarantees a significant degree of individual freedom for people to dictate the terms of their family life. It would be wrong of the state to take away this liberty.