Nicola J. Barker

From social security to individual responsibility: sanctions, conditionality, and punitiveness in the Welfare Reform Bill 2009 (part one)

The Welfare Reform Bill 2009 is the latest development in New Labour’s ‘responsibility’ agenda. Based largely on commissioned reports by former investment financier David Freud (2007) and economist Paul Gregg (2008), the Bill extends reforms contained in, among others, the Welfare Reform Act 2007, which increased levels of benefit conditionality, expanded requirements to undertake work-related activity, and introduced sanctions for non-compliance with various obligations (see Puttick 2007). As outlined in the Green Paper, No One Written Off: Reforming Welfare to Reward Responsibility (DWP 2008a), the new reforms require welfare claimants to ‘work for [their] benefit’, criticising what the government refers to as a ‘something for nothing approach’ that purportedly characterized welfare until relatively recently. Aiming to address ‘inactive benefits’, these new reforms target those people who, in the government’s view, had been ‘written off’ either as long-term benefits claimants or by being moved on to incapacity benefit (see, for example, DWP 2008a, p. 14). Collectively, these reforms move further away from the basic social security entitlements that characterized earlier welfare ideals, and towards more disciplinary, contractual, and consumer-based models of service delivery and individual responsibilisation. In other words, we suggest that the ‘universal social security without means test, uniformly administered by a Ministry of Social Security’ of the Beveridge Report (Fraser 2009, p. 254) is evolving into a conditional, partly privatized, market-like environment, in which the state uses the provision of basic needs as both carrot and stick to regulate the behaviour of welfare claimants. In this two-part article, we (along with our colleagues Emily Grabham and Jenny Smith, in Part Two) examine key proposals contained within Part One of the Welfare Reform Bill 2009, as it was introduced into the House of Lords on 18 March 2009. Part One of the Bill makes significant changes to social security provisions, including: simplifying the system through a single system of benefits; imposing sanctions for failure to comply with work search requirements and other misdeeds; privatizing (‘contracting out’) job search services for long-term claimants and those with complex needs; and introducing ‘work for your benefit’ requirements for most claimants, including some who were previously claiming incapacity benefits and single parents.

Ambiguous symbolisms: recognising customary marriage and same-sex marriage in South Africa

In this article I draw on the South African legal context to critique the argument that same-sex marriage would provide ‘equal recognition’ for same-sex relationships. I highlight the ways in which, despite strong equality provisions in the South African Constitution and an apparent commitment to substantive rather than merely formal equality, both customary marriage and same-sex marriage continue to be subordinate to heterosexual civil marriage. I then broaden my analysis to consider the extent to which this would also be the case in other jurisdictions, particularly the UK. Drawing on the Butler/Fraser debate on recognition and redistribution, I argue that there is a connection between misrecognition and material disadvantage that goes unacknowledged in ‘symbolic recognition’ claims for same-sex marriage. The critiques of ‘marriage equality’ should sound a warning not only to same-sex marriage advocates but also more generally to those who would seek ‘equal recognition’ through law reform.

From social security to individual responsibility: sanctions, conditionality and Punitiveness in the Welfare Reform Bill 2009 (Part One): Current Developments

The Welfare Reform Bill 2009 is the latest development in New Labour’s ‘responsibility’ agenda. Based largely on commissioned reports by former investment financier David Freud (2007) and economist Paul Gregg (2008), the Bill extends reforms contained in, among others, the Welfare Reform Act 2007, which increased levels of benefit conditionality, expanded requirements to undertake work-related activity, and introduced sanctions for non-compliance with various obligations (see Puttick 2007). As outlined in the Green Paper, No One Written Off: Reforming Welfare to Reward Responsibility (DWP 2008a), the new reforms require welfare claimants to ‘work for [their] benefit’, criticising what the government refers to as a ‘something for nothing approach’ that purportedly characterized welfare until relatively recently. Aiming to address ‘inactive benefits’, these new reforms target those people who, in the government’s view, had been ‘written off’ either as long-term benefits claimants or by being moved on to incapacity benefit (see, for example, DWP 2008a, p. 14). Collectively, these reforms move further away from the basic social security entitlements that characterized earlier welfare ideals, and towards more disciplinary, contractual, and consumer-based models of service delivery and individual responsibilisation. In other words, we suggest that the ‘universal social security without means test, uniformly administered by a Ministry of Social Security’ of the Beveridge Report (Fraser 2009, p. 254) is evolving into a conditional, partly privatized, market-like environment, in which the state uses the provision of basic needs as both carrot and stick to regulate the behaviour of welfare claimants. In this two-part article, we (along with our colleagues Emily Grabham and Jenny Smith, in Part Two) examine key proposals contained within Part One of the Welfare Reform Bill 2009, as it was introduced into the House of Lords on 18 March 2009. Part One of the Bill makes significant changes to social security provisions, including: simplifying the system through a single system of benefits; imposing sanctions for failure to comply with work search requirements and other misdeeds; privatizing (‘contracting out’) job search services for long-term claimants and those with complex needs; and introducing ‘work for your benefit’ requirements for most claimants, including some who were previously claiming incapacity benefits and single parents.

From Social Security to Individual Responsibility

The Welfare Reform Bill 2009 is the latest development in New Labour’s ‘responsibility’ agenda. Based largely on commissioned reports by former investment financier David Freud (2007) and economist Paul Gregg (2008), the Bill extends reforms contained in, among others, the Welfare Reform Act 2007, which increased levels of benefit conditionality, expanded requirements to undertake work-related activity, and introduced sanctions for non-compliance with various obligations (see Puttick 2007). As outlined in the Green Paper, No One Written Off: Reforming Welfare to Reward Responsibility (DWP 2008a), the new reforms require welfare claimants to ‘work for [their] benefit’, criticising what the government refers to as a ‘something for nothing approach’ that purportedly characterized welfare until relatively recently. Aiming to address ‘inactive benefits’, these new reforms target those people who, in the government’s view, had been ‘written off’ either as long-term benefits claimants or by being moved on to incapacity benefit (see, for example, DWP 2008a, p. 14). Collectively, these reforms move further away from the basic social security entitlements that characterized earlier welfare ideals, and towards more disciplinary, contractual, and consumer-based models of service delivery and individual responsibilisation. In other words, we suggest that the ‘universal social security without means test, uniformly administered by a Ministry of Social Security’ of the Beveridge Report (Fraser 2009, p. 254) is evolving into a conditional, partly privatized, market-like environment, in which the state uses the provision of basic needs as both carrot and stick to regulate the behaviour of welfare claimants. In this two-part article, we (along with our colleagues Emily Grabham and Jenny Smith, in Part Two) examine key proposals contained within Part One of the Welfare Reform Bill 2009, as it was introduced into the House of Lords on 18 March 2009. Part One of the Bill makes significant changes to social security provisions, including: simplifying the system through a single system of benefits; imposing sanctions for failure to comply with work search requirements and other misdeeds; privatizing (‘contracting out’) job search services for long-term claimants and those with complex needs; and introducing ‘work for your benefit’ requirements for most claimants, including some who were previously claiming incapacity benefits and single parents.

Same-Sex Marriage Litigation

The world’s first legally recognized same-sex marriage took place in the Netherlands in 2001 after the legislature amended the definition of marriage to include same-sex couples. In contrast, there has been a highly contentious and visible battle for same-sex marriage in the United States, through both the courts and the political arena. This chapter outlines the different evolutions (or in some cases perhaps revolutions) that resulted in same-sex marriages in some of the jurisdictions where it is currently available.1 The purpose of this is to identify the broad themes that have emerged in terms of the legal arguments that have been made for same-sex marriage rather than to provide a detailed analysis of each jurisdiction. I argue that these common themes are: sameness and formal equality; access to the legal consequences of marriage; the symbolic importance of access to the label ‘marriage’; and the ways in which same-sex marriage would support the institution more generally. Another common theme is the existence of a backlash against same-sex marriage.

Different Institutions for Same-Sex Relationships: A Departure from the Marriage Model?

Over the last two decades, legal action and political activism from same-sex couples and lesbian and gay advocacy organizations seeking relationship recognition has resulted in the introduction of either same-sex marriage or a separate but, to varying degrees, marriage-like provision in some jurisdictions. Separate provisions are generally presented by lesbian and gay organizations as a compromise and a pragmatic way to secure some relationship recognition for same-sex couples in the absence of marriage (Merin, 2002, p. 63). For example, explaining its decision to lobby for civil partnership rather than marriage, Stonewall states: ‘Stonewall’s main focus was on the outcome in terms of rights and responsibilities, rather than the label. Civil partnership achieves parity with marriage in every respect.’ (Stonewall, 2007)

The Marriage Model

Marriage is frequently claimed, as above, to be a simple and universally understood institution. However, I suggest that it lacks a clear definition from either statute or common law in the UK and, despite Mr Justice Karminski’s clarity on the issue, the ‘essence’ of marriage is perhaps not as readily comprehensible as he suggests. While Lord Penzance’s formulation of marriage as ‘the voluntary union for life of one man and one woman to the exclusion of all others’ (Hyde v Hyde and Woodmansee [1866] L Rev 1 PD see also Sharpe, 1997, and Bainham, 2002, describing it as the ‘classic’ definition; and Murphy, 2004 referring to it as the ‘traditional’ definition), it has been undermined by evolutions in the law of marriage (see also Murphy, 2002, p. 188). In fact, Sebastian Poulter argues that it was never wholly accurate, particularly in relation to the ‘for life’ requirement, since divorce was available before 1866 (1979, pp. 418–19). He also notes that the ‘actual rule’ in Hyde (that potentially polygamous marriages contracted abroad would not be recognized by English law) has disappeared following legislative reform (1976, p. 508). Despite this, the attitudes underlying Lord Penzance’s formula survive ‘through their very familiarity and constant repetition’ (1976, p. 508). Rebecca Probert also refers to the Hyde formula as ‘positively misleading as a definition of marriage’ (2007) and claims that Lord Penzance’s view was more a defence of marriage than a definition.

Of Outlaws and In-Laws: The ‘Ambivalent Gift’ of Legal Legitimation

In Chapter 4, I highlighted the two sets of arguments that I consider to be the strongest in terms of potentially overcoming the feminist critiques of marriage in the context of same-sex marriage. In Chapter 5, I responded to the first set of arguments, which suggest that it might transform the institution. In this chapter, I focus on the second set of arguments for same-sex marriage, which highlight the need for positive recognition of same-sex relationships and/or suggest that same-sex marriage may have a transgressive impact on the institution of marriage. I use the terms transformation and transgression in distinct, though linked, ways. Transformation refers to (perhaps fundamental) changes within the marriage model, such as the egalitarianism that Hunter and others suggest will result from same-sex marriage. In contrast, transgression of the marriage model would involve challenging the model in a way that goes beyond or destabilizes the existing parameters of marriage, or queers marriage.1

Arguments for Same-Sex Marriage

As illustrated in the previous two chapters, the case for same-sex marriage has been increasingly successful over the last decade with the introduction of legal marriage for same-sex couples in some jurisdictions and the creation of marriage-like provisions, such as civil partnerships, in many more. In this chapter, I classify and assess the merits of the arguments in favour of same-sex marriage. I contend that the strongest factors from a feminist perspective are those that emphasize the need for positive state recognition of same-sex relationships, particularly when marriage is framed as a demand for positive recognition of difference rather than sameness. This is because recognition of difference within marriage might provide opportunities to transform the institution by challenging inequalities within it, or even transgress (or queer) it. Although arguments are based on conservative family values rhetoric, access to the legal consequences of marriage and formal equality are strong in terms of their appeal to mainstream audiences (and, as demonstrated in the previous chapter, probably the most successful type of argument) but are the weakest from a feminist perspective because they simply reinforce the existing marriage model.

Second-Wave Theories for Third-Wave Families? Feminist Perspectives on (Same-Sex) Marriage

As discussed in Chapter 4, there are some reasons why access to the legal institution of marriage may be important or perhaps even necessary for same-sex couples. In particular, the symbolic value of state recognition for same-sex couples in the context of a history of criminalization of gay male and, to a lesser extent, lesbian sexual activities (see, for example, Weeks 1977; Waites, 2002) should not be underestimated. Further, it is argued that same-sex marriage may provide opportunities to transform or transgress the institution. Marriage and the (heterosexual nuclear) family form that it creates and supports have, however, long been the subject of criticism, most notably from feminists, as well as Marxists and socialists (see, for example, Engels, 1972), and gay liberation groups (see, for example, the Gay Liberation Front, 1971). Despite this history of critiquing marriage within these movements, there has been limited acknowledgment of, and even less engagement with, their ideas that marriage is a problematic institution from those advocating for same-sex marriage and similar forms of relationship recognition (see also Young and Boyd, 2006; Auchmuty, 2007). Indeed, as discussed in the previous chapter, some have made feminist arguments for same-sex marriage.