Saturday, 24 November 2012

Rotherham council and UKIP

The BBC is reporting that a couple in Rotherham have had their foster children taken away, because they are members of the UK Independence Party.

If this is true this is extremely worrying, and legally problematic.

The council's decision maker, Joyce Thacker, points to a number of policies of UKIP's that she perceives as unacceptable and which she claims justify this decision. These include its policies on immigration. The couple claim that they were told that 'UKIP is a racist party', with the implication that they too might therefore be racist.

One possibility that initially seemed likely to me was that perhaps some kind of unpleasant comments by the couple might be the real cause of concern, rather than the party membership itself. But Ms Thacker made no such claim, and seemed to agree that it was membership of UKIP per se that was the problem.

If so, this is a terrible precedent. Both Labour and the Conservative Party have not entirely dissimilar policies on immigration to UKIP. In its 2010 manifesto, the Conservative policy on immigration was barely distinguishable froim UKIP's current policy — the main difference being that UKIP would also withdraw from the EU.

In 2010, Labour Minister for Immigration (as he then was) Phil Woolas took a line on immigration that was barely distinguishable from either UKIP or the Tories. And this is before you consider what other policies the main parties might have that might be perceived as odious, perhaps on welfare, education, civil liberties, or the NHS.

Ms Thacker has also confirmed that there were no concerns over the care being given to the children. The only problem was with what she called a concern for 'the children's cultural and ethnic needs'. To me, this sounds a lot like weasel words for punishing the couple for their political views.

If Rotherham's actions are correct, this means that the possibility exists of children being taken away from foster parents on the basis of their being Labour or Tory party members, due to those parties' policies being seen as unacceptable. But this is not only a bad idea, but also a huge fallacy: simply because someone is a member of a political party, it does not mean that they share all that party's views, and it does not mean they agree with all its policies. People might support a political party for a number of reasons, but everyone should only be judged on their own views and actions. Otherwise we could have any number of ridiculous but analgous situations: a conservative-voting pensioner might be refused social housing, based on the Conservative party's policy towards such housing, for example. Or a Labour-voting police officer might be sacked, because he is deemed to be vicariously liable for Labour's policy on law and order.

Legal difficulties

Ms Thacker also seems to consider that the children's nationality or ethnicity makes a difference: it would be fine for the unnamed couple to foster a British child, but because the children here are EU citizens, and hence immigrants, it is unacceptable for a UKIP-supporting couple to care for them.

In the absence of some actual discriminatory behaviour by the couple, this is not only a huge stretch of logic but almost certainly unlawful discrimination by the council, in my opinion. The children are being treated differently because of their nationality — not by the couple, but by the council. This is unlawful under EU law, which has direct effect over the council, and quite possibly under domestic law as well. Good motives are no defence to unlawful discrimination.

There is also a (recently developed) possibility of discrimination due to political party membership. This is a concept which comes from the ECHR case Redfearn v UK. The facts of the case were that a bus driver employed by a private company was sacked for belonging to the BNP. The employer felt this was justified, because of the BNP's views, even though Mr Redfearn had not been guilty of any racist or discriminatory behaviour against any person. The European Court of Human Rights held that this was a potentially unlawful violation of the claimant's right to freedom of association, and that he must be given the right to at least bring an unfair dismissal claim in the domestic courts. This at first seemed tough for me to swallow: the BNP are certainly an odious organisation. But it makes more sense when you consider the undesirability, discussed above, of allowing a political party's views and actions to be imputed onto each of its voters or supporters rather than judging them as individuals.

In Redfearn, the dismissal stood notwithstanding the ruling, because the employer was a private comapny. But following this ruling, it seems that a public body cannot now act contrary to this ruling because of section 6 of the Human Rights Act::

6 Acts of public authorities.

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.  
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
Subsection (2) does not assist the council here, as they are exercising a discretionary power. Therefore it seems that it must follow that the council's actions in violating the Convention right
established in Redfearn are potentially unlawful and liable to be quashed.

There would be a defence to such a claim if the action could be shown to be proportionate. Redfearn did not establish that all discrimination against political views is unlawful in all circumstances. But the case that the treatment here is proportionate seems extremely weak. I would urge the couple concerned to seek legal advice urgently.


It seems there is a by-election coming up in Rotherham, which is rather convenient, and a lot of UKIP supporters are urging people on Twitter to vote against Labour in repsonse to this. This seems far too good to be true for UKIP, and the only thing stopping me thinking they have made the whole thing up is the fact that Ms Thacker went on the BBC and seemed to confirm UKIP's version of events.  It will be interesting to see if there is more to it.

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