Drawing
a Line
Stanley
Milgram’s experiments in obedience in the early
1960’s are infamous1.
Subjects were asked to apply electric shocks to participants (actually
his
associates) who answered questions wrong. The shocks increased
gradually up to
450 volts. When the subjects questioned who was responsible, the
experimenter
assumed full responsibility. Despite distress, no-one backed out before
300
volts and over 60% administered shocks (as they believed) all the way
to 450
volts. Milgram was concerned to explore the famous
Milgram
demonstrated beyond all doubt the capacity of ordinary people to
participate in
unimaginable horror, when acting under the instructions and authority
of
someone else. Are we social workers any better than Milgram’s
subjects? Might
social work have found a place in the concentration camps, offering
support to
people waiting for the gas chambers, or making a case that apartheid
was
consistent with anti-discriminatory practice? Closer to home, the issue
for
this final article is whether we in the
My
clear conclusion is that the proper response to Milgram is to make a
commitment
that you will never obey authority unquestioningly, and to establish
for
yourself a moral framework against which orders can be tested. If, as
social
workers, we accept the laws of our country as having an authority that
we need
not question, we are on a path of dangerous blind obedience like that
of
Milgram’s subjects.
All
very well, but if we all decide for ourselves the extent to which we do
or do
not obey the law, will we not have anarchy? Cannot the law itself
provide a
moral framework within which social work can safely operate? If not,
where can
we look?
My
previous two articles were set in the context of section 21 of the
National
Assistance Act, so let’s return there one more time. The
power of a social
services authority to provide a destitute person with accommodation and
subsistence support under this section has been expressly restrained by
Parliament, at least twice. Parliament legislated in 1999 to prohibit
support
to people subject to immigration control whose needs arose solely
because of
destitution2; then in 2002 to require the
withholding and withdrawal
of support from people in certain ‘excluded classes’3.
It
is worth reiterating that if social workers were to make autonomous
human
rights decisions, and to challenge unlawful practices, as discussed in
previous
articles, many of those currently denied help would receive it. But not
all of
them, and clearly it is the intention of the legislation that some
people are
to receive no support, accommodation or subsistence whatsoever.
A
report by the Mayor of London described the government’s use
of destitution as a tool
of immigration policy as “Destitution
by Design”4; Lord Justice Jacobs in
the Court of Appeal described it
as “abhorrent, illogical and very expensive”5.
But by what moral
standard exactly is it appropriate for us to question the laws passed
by
Parliament for us as social workers to implement?
Lord
Justice Bingham, Britain’s most senior law lord, set out his
vision of what was
meant by the “Rule of Law”, in an important speech
in Cambridge three months
ago6. There were, he said, eight elements, among
which are that the
laws of the land should apply equally to all; that the law must afford
adequate
protection of fundamental human rights; and that there must be
compliance by
the state with its obligations in international law.
The
Rule of Law is said to be one of the enlightening principles
underpinning our
constitution. It is essential to appreciate that the Rule of Law is not
synonymous with the Rule of Parliament; indeed the principles set out
by Lord
Bingham are principles against which legislation can be tested; it must
therefore be possible to question the will of Parliament without
undermining
the Rule of Law.
I
have already bemoaned, in my first article, how legislation on the
application
of section 21 is inconsistent with international human rights
standards. I have
already observed, in my second article, how the intent of Parliament
has been
thwarted by successful challenges in the courts. I suggest, then, that
it is
possible to uphold the Rule of Law while simultaneously questioning the
authority of Parliament!
Let’s
further explore another aspect of the Rule of Law identified by Lord
Bingham –
that the laws should apply equally to all. Anti-oppressive and
anti-discriminatory practice is well-established as a core value of the
social
work profession. Yet these laws are inherently oppressive and
discriminatory.
Apart from anything else, they amount to indirect race discrimination
as
defined in the Race Relations Act. The indirect discrimination is
lawful
because immigration control is excluded from the scope of that Act.
Arguably,
such discrimination is therefore also permitted for the purposes of the
GSCC
Code of Practice at paragraph 5.5 which says we must not
“discriminate
unlawfully or unjustifiably against service users, carers or
colleagues.”7
So does the fact that the discrimination is lawful make it consistent
with
anti-oppressive and anti-discriminatory practice? I suggest not, and in
so
suggesting point up an inherent conflict between what legislation
expects of us
and what our professional standards expect of us.
If
I have been able to bring you with me, you will have arrived at an
acceptance
that we have a moral duty not to unquestioningly accept the will of
Parliament,
that legislators themselves are bound by the Rule of Law, that our
professional
obligations might be inconsistent with legislation, and that it is
possible to
put forward all these propositions without descending into anarchy.
What,
exactly, do we do then, when we find ourselves in conflict with the
laws that
bind us?
Our
Code of Ethics8 requires us to
“bring to the attention of those in power and the general
public, and where
appropriate challenge ways in which the policies or activities of
government,
organisations or society create or contribute to structural
disadvantage,
hardship and suffering, or militate against their relief.”
The Code appears to
anticipate conflict with the government, and create an obligation to be
an activist
for change – no invitation there to unquestioningly accept
the law!
At
a personal level,
be an activist for
change. Whether it be the treatment
of people subject to immigration control, or other issues such as the
placing
of all our children on a national database, draconian reforms to mental
health
law, the criminalisation of our service users for acts that would not
have
breached the criminal law but for the existence of an ASBO, or any of
the other
controversial issues associated with social work practice, be prepared
to
challenge the government.
Responsible
campaigning may be characterised as being peaceful, and being public. The latter means both that it is for public
rather than personal or
private benefit, and that it is in the public domain. The
judgement of
the House of Lords in the last few weeks on the Fairford
protests9 (against the bombers flying to Iraq
from RAF Fairford)
demonstrates both that activism might
unexpectedly turn out to be civil disobedience (it appears many of the
protesters
had no plans to break the law) and that activism may unexpectedly turn
out not
to be civil disobedience, as their Lordships held both that the
protesters were
in fact unlawfully detained and there had been a breach of their human
rights
of assembly.
Even
so, that road is not for many. At least, be educated and belong. If you
work
with asylum seekers, have you read The Destitution Trap10?
If you work in health care, First Do
No Harm11? If with children, The
End of the Road12?
If with survivors of domestic
violence, How Can I
Support Her13? All published
in recent
months, the publications were by or supported by charities and
campaigning
groups needing your support: Refugee Action, Amnesty International, the
Refugee
Council, Oxfam, Barnardos and Southall Black Sisters. And there are
local
research findings, at least in
At
an organisational level,
too, be an agent for
transformation. Seriously, it is
not impossible to construct services around a model in which the social
worker
assesses need rather than rations services, human rights decisions are
made by
social workers rather than lawyers, and decisions to deny based on
rationing or
rights are decisions calling for advocacy not implementation.
At
an individual level,
be an advocate not a
bureaucrat. Have you found it
strange to note how increasingly service users are held to need an
advocate in
their dealings with social workers? Why are we not ourselves their
advocates? Where
you have discretion, use it sympathetically; where the service user has
rights,
make him or her aware of them; where you believe these rights are being
denied,
assist him or her to find an advocate. Remember that it is quite
consistent
with professional practice to assist your client to get the help they
need to
challenge your decision, quite consistent with good management to
question the
validity of your internal policies, and quite consistent with the Rule
of Law
for the courts to review the application of legislation in the light of
international human rights standards.
What
we may not do, is simply obey orders. The
Footnotes
1. Milgram, S
(1974) ‘The Perils of Obedience’
Harpers
Magazine
2. Section
116 of the Immigration and Asylum Act 1999
3. Schedule
3 to the Nationality, Immigration and Asylum Act 2002 as
amended
5. Secretary
of State for the Home Department v Limbuela & Ors [2004] EWCA
Civ 540 (21
May 2004)
7.
General
Social Care
Council (2002) ‘Codes of Practice
for
Social Care Workers and Employers’
8. British
Association of
Social Workers (2002) ‘The Code of
Ethics
for Social Work’