Democracy and the Labour Party

Introduction

This blog is a reflection on one aspect of democracy in the Labour Party; what do we expect from our elected representatives in terms of accountability? The occasion for it is six Labour councillors from Hove breaking the whip, and defying both the CLP membership and the election manifesto, to abstain on the Homeless Bill of Rights. My conclusion is that this behaviour is essentially undemocratic and unsocialist and that the councillors should account for themselves to their membership.

The Homeless Bill of Rights

The events around the city’s adoption of the Homeless Bill of Rights form the background for this blog about democracy.

The Brighton & Hove Homeless Bill of Rights was launched on 28^th October 2018 by Brighton & Hove Housing Coalition with FEANTSA (the European umbrella organisation for homelessness, whose original initiative it is) and Just Fair (a UK human rights organisation promoting social and economic rights).

All three CLPs passed motions calling for the adoption of the Homeless Bill of Rights. In the case of Hove CLP this was at a GC on 26^th January 2019 when the motion passed unanimously and forwarded to the leader of the Labour Group. Subsequently, the Labour Party manifesto for the May 2019 local elections, like the Green Party manifesto, committed the party to the adoption of a Homeless Bill of Rights.

On 25th June 2019 a petition with about 2,500 signatures was presented to the Council by Brighton & Hove Housing Coalition, calling on it to adopt the Homeless Bill of Rights. Both Labour and Green spokespeople welcomed it and committed themselves to furthering it. The Labour administration worked closely with the Green party to agree joint goals, and that agreement was embodied in the Council Plan 2020-23, which states that “We will … adopt a Bill of Rights for homeless people.”

After a lot of work by both Labour and Green administrations, the Homeless Bill of Rights was incorporated into the Homelessness and Rough Sleeping Strategy 2020-2025.

On 17^th March 2021, a report put before the Housing Committee rather oddly recommended referral of “the use of the Homeless Bill of Rights” to Full Council. Labour proposed and the Greens seconded an amendment to restore the word “adopt” that had always been used up to this point. Labour and the Greens voted for the amendment, and the amended report was then passed by Labour and the Greens in the Policy and Resources Committee.

On 25^th March 2021 the amended report came before Brighton & Hove City Council, recommending that the city adopt the Homeless Bill of Rights as an aspiration and a standard against which the Council and its partners would measure themselves. It passed by 31 votes to 13 with 7 abstentions. All the Green Councillors voted for and all the Conservatives against. The Labour Group had agreed to vote for it and this decision was and is on the website. Nevertheless, six Labour councillors (Councillors Appich, Atkinson, Hamilton, Henry, Moonan, and Quinn), all from Hove CLP, broke the Labour whip to abstain. What we know of their reasons is contained in a speech by Clare Moonan, which repeated Conservative attack lines and was (frankly) shameful. (For a discussion of the speech and why it illustrates very well the need for a Homeless Bill of Rights see here.)

Representative Democracy

There are broadly two views on the responsibilities of elected representatives. One view, famously supported by the conservative philosopher Edmund Burke, is that once they are elected decisions on how to cast their vote are entirely up to the conscience of the individual member of parliament or councillor. This is a viewpoint that sits easily with the general notion that the elite rules us in our own best interests, and elections are simply a process of choosing which members of the elite should be given that role; naturally they could then be given the dignity and autonomy that they would expect, and naturally they could be expected to use it in the interests of (in practice) the ruling class.

The development of party systems serves to modify this position in the direction of greater democracy. Instead of just choosing between individuals, electors choose between parties, with specific programmes contained in election manifestos; they are then taken to have chosen the programme, and the winning party claims popular support for the policies contained in it. For an elected representative to refuse to support a policy in the manifesto is thus undemocratic. Moreover, there is a democratic legitimacy to party discipline; the electorate may be assumed to expect the party they have voted for to act with a degree of unity, since otherwise the democratic vote for their programme is unlikely to be effective.

There is also a socialist position on this issue to bear in mind. Left parties in politics, especially parties representing the Labour movement, have long been suspicious of elected representatives exercising their own judgment independently of those who voted for them. Gerrard Winstanley, the Digger, thought that elected representatives should never be in office for more than a year nor more than once, or they grow “so mossy for want of removing, that they will hardly speak to an old acquaintance, if he be an inferior man …” (The Law of Freedom, 1652). That is to say, there is a tendency for people who are elected to power to start to find the logic of the ruling class more compelling than the needs of those who put them there. The Levellers called for annual parliaments, so that representatives had to secure election once a year. The Chartists also called for Parliamentary elections every year, not once every five years. When the Labour Reform Committee met in 1900, it was to promote candidates pledged to support the policy of the Labour Group (which became the Labour Party in 1906).

Reflecting these concerns, so far as local government candidates are concerned, when they become a Labour Party councillor candidate they must undertake to accept and comply with the standing orders of the Labour Group (Rules 5.III.3). The leader of the Labour Group is entitled to expect loyalty from the other members.

Another interesting take on this issue is the excuse made by Councillor Moonan in her speech, that she had to represent all her constituents, presumably including the bigoted ones. Others also use this argument. The problem with that view is that she has been elected on a programme; the democratic process has decided that that is the programme she should carry out. Of course she should help any constituent who needs her help; but it is not an excuse for abandoning both democracy and principle.

If your analysis of politics is one based on inequality or class, then you do not believe that you are simply voting for the person who can best run the system; instead you are voting to change the system, and you want your representatives to be accountable for any failure to follow your party’s policies. If you are a member of a democratic party whose membership selects its candidates and debates and votes on policies, then you also want your representatives to be accountable to the membership who chose and campaigned for them.

What do we expect of our councillors and MPs?

There are people in the Labour party who have not always followed the party line, and some of those I find admirable. So it is not as simple as saying that a MP or a councillor must always and simply do as the whip says. But in my view Labour MPs and councillors should as a minimum be accountable. If they choose to defy party discipline, breaking their undertaking and undermining that party’s reputation and effectiveness, if they refuse to support a policy that their membership supports, if they break a manifesto commitment – then at the very least they owe a duty to come before the membership of their own branch and constituency, explain themselves, and respond to any questions the membership chooses to put to them.

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Censorship in the Labour Party and “Competent Business”

Introduction

As is widely known, in an email to CLP Chairs and Secretaries on 12th August, the Labour Party’s General Secretary David Evans ruled that three subjects were ‘not competent business for discussion by local parties’ — the Panorama programme legal settlement; the EHRC report into claims of antisemitism in the Labour Party; and the Party’s acceptance of the IHRA definitions of antisemitism and its examples.

It is an odd collection of topics. The first was said to be for legal reasons, although this lawyer finds them unconvincing; no discussions or motions in branches or CLPs can take back or impugn the apology given or the legal settlement so far as I can see. The second is said to be because it isn’t out yet – but that is like saying we shouldn’t discuss Brexit because we don’t know the final form it will take yet. There is a lot to say, about Brexit and about the EHRC investigation, in advance of the outcome. But the third is perhaps the oddest – the reason is said to be that the definition was properly adopted by the NEC (the National Executive Council of the Labour Party) in accordance with the rules. Yes, but the NEC is subject to conference, and there is nothing in the constitution that stops CLPs putting procedural motions to the 2021 conference requiring it to be dropped; there is nothing in the constitution, up to and including Clause 4, that cannot be discussed and changed by conference. If we can pass motions on the subject, we must be able to discuss it.

I drafted a motion for my branch party to discuss (click here for the full text), asking what the General Secretary’s authority was for issuing the instruction and urging that it be withdrawn. To my surprise, the Acting Regional Director, Ellie Buck, wrote to my branch EC saying that my motion was itself “not competent business to be discussed”, giving as her reason that it was discussing the topics that Evans had told us were not competent to be discussed (which it wasn’t – all it said about those topics was that they were “contentious for many Party members and the subject of widespread public debate”; no opinion was offered, the motion concerned the instruction itself).

So there we have it. These three topics are “not competent to be discussed” and not just the General Secretary, but more junior members of the Party’s paid staff, have the right to declare that a new topic – the fact of the General Secretary’s instruction – is also “not competent to be discussed”.

Analysis

This is not a left-versus-right issue but an issue of democracy. A couple of years ago we had a similarly worded instruction from Jennie Formby, telling us not to discuss ongoing disciplinary proceedings. I think the same problems apply there.

There is a legal point here. The authority of paid staff is delegated from the NEC, and cannot be greater than that of the NEC. The NEC has the power to “issue guidance and instructions on the conduct of meetings” (1.VIII.3.E) – conduct, not content. Mr Evans’ instruction had not been discussed by the NEC; he obviously thought he had delegated authority without any express authorisation from the NEC – at least some members of the NEC are uncomfortable with that[1].

But for the present I am more interested in the phrase that David Evans, and Jennie Formby, and Ellie Buck, have used. They say that such-and-such is “not competent business” for a branch/CLP. You might think that that is just vacuous bureaucrat-speak for “you are not allowed to talk about it”. It certainly feels enormously patronising – these three people, clearly, are competent, and we are not. But it is actually a legal phrase – no surprise to find legal jargon being used to confuse and confound.

A good example of its legal usage might be the Scottish Parliament. This was created by a statute of the UK Parliament, the Scotland Act 1998, which gave the devolved parliament power to legislate in certain areas but not others. As a result the Scottish Parliament has competent business, that in relation to which they have the power/competence to legislate, and other business where they don’t have that power (although of course this does not limit their ability to discuss anything and everything). The phrase relates to the situation where a body creates another body and delegates some, but not all, of its powers to the second body. A local authority committee, for example, has specified areas of competence, given to it by the full council. It makes no sense, on the other hand, to talk about competent business for the UK Parliament; it is sovereign, there is nothing it can’t legislate about. It can rule that night is day if it wishes.

So when a General Secretary, or even the NEC, talks about “competent business” for a CLP, they are talking from a mindset where they have all the power and whatever CLPs might do is defined and limited by them. It is a view of the Labour Party where the executive is the supreme authority and CLPs do what they are told.

But, as we all know, that is wrong. The Labour party is a democratic party. The sovereign body is the (usually) annual Labour Party Conference, to which the NEC is accountable, and which has the power to change all of Labour’s procedures and policies, indeed to change the NEC itself. Conference is made up of delegates from CLPs, unions and socialist societies. These are the “competent” bodies in the Labour party. It is for them to define what the executive has the power to do. It makes sense to talk about “competent business” in relation to the NEC, or a Secretary-General; what they can do is defined by rules made by conference. Their purposes, duties and powers are those set out in Chapter 1 Clause VII and VIII of the Rules; they are extensive, but limited. One thing delegated by conference to the NEC is making rules and guidance on the conduct of CLP meetings, say on the manner in which nominations in the NEC elections are made. But it makes no logical sense for conference to delegate powers to the NEC to limit what CLPs can say. They are part of the party’s sovereign body. They must be able to discuss everything.

The rules say so explicitly (1.V.1): “At all levels the Party will ensure that members, elected representatives, affiliated organisations and, where practicable, the wider community are able to participate in the process of policy consideration and formulation.”

Conclusion

In my considered opinion, instructing branches and CLPs not to discuss any topic is “not competent business” for the NEC or any paid staff, including Ms Formby, Mr Evans, and Ms Buck.

[1]   https://twitter.com/LabourRachel/status/1294325002146328576

A Homeless Bill of Rights for Brighton and Hove

Introduction

Human rights are for everyone, without exception, whatever their housing or immigration status. But that means little to people who are homeless, who routinely must deal with contempt and disregard from the general public and from some public services and officials. The Brighton and Hove Housing Coalition hopes that by launching a Bill of Rights for the homeless we can make those rights a little more real and effective. It is intended as a reminder and challenge to everyone to treat our fellow citizens with respect and courtesy, and to do what we can to help those of us who are in this desperate situation.

The rights are mostly already the law in this country, and where they are not they are in line with our international obligations.

(Update)

For further news and progress on this campaign – which is near acceptance by Brighton & Hove, and has been adopted by the Labour Party – see http:\\homelessrights.org.uk.

The Campaign

We are launching the Homeless Bill of Rights (#BrightonHomelessRights) on Sunday 28^th October 2018. We’ll be at the Street Kitchen at the Clock Tower in the centre of Brighton from 1pm, talking to the public, including the homeless and destitute people who come to eat and obtain help at this great volunteer-run institution. Then we’ll do the formal launch in the Hanover Room at the Brighthelm Centre from 2:30pm. There will be speakers from the European campaign (see below), from Just Fair (the UK organization promoting social and economic human rights), and from homelessness campaigners in this city.

Following the launch we’ll be campaigning for the Bill of Rights to be adopted by the City Council and by other public authorities in the city, including the NHS and the police. If the City does adopt the Bill of Rights, the Coalition will hold them to it, providing an annual report on progress (or otherwise) against its aspirations and demands.

The European Campaign

The Homeless Bill of Rights campaign [link] was launched in 2017 by FEANTSA, the European coalition of homelessness organisations, in partnership with Housing Rights Watch (see Appendix). Their concern was that rising numbers of homeless people across Europe were being met by measures to make them less visible, by criminalizing them and pushing them further into social exclusion and poverty. They launched the campaign to encourage cities to recognize the rights of the homeless.

The Homeless Bill of Rights is a compilation of basic rights drawn from European and international human rights law. Introducing the Homeless Bill of Rights is an article by Maria Jose Aldanas, policy officer at FEANTSA, who is coming to the launch in Brighton to support and promote our initiative.

The Bill or Charter of Rights has been adopted by six European cities, including Barcelona, so far, and campaigners in many countries are working towards adoption. It is a flexible document and the manner of adoption is a matter for individual campaigns. In our case we have adapted the Bill of Rights by doing our own translation and adding two further articles; we have the blessing of FEANTSA in this and in our attempt to make Brighton & Hove the first British city to adopt it.

Our Bill of Rights

This is the full text: you can download it here.

HOMELESS BILL OF RIGHTS

In accordance with international human rights treaties and in line with domestic law and the democratic and humanist values that underpin it, we, Brighton and Hove City Council (“the Council”) declare:

It is the constant concern of the Council to respect and uphold the rights of people who are experiencing homelessness, in particular their right to housing. While working towards that goal we are determined not to contribute in any way to the harsh and inhuman conditions too often experienced by people who do not have a place to live.

We believe that it is the responsibility of all individuals, businesses and organisations, and of all local authorities, including ourselves, to commit themselves to improving the living conditions of people who are homeless and to lessen the negative effects of homelessness.

To help achieve this, and in common with other cities throughout Europe, we believe that it is important to re-state that every person who is experiencing homelessness is entitled to the same treatment as any other resident in the city area. No one should be denied rights because they are homeless.

In particular we commit ourselves to making effective the following rights:

1. The Right to Housing

The most important right a homeless person has is to exit homelessness. Services supporting access to appropriate housing must be accessible to all homeless people. In partnership with other competent public authorities, the Council shall work to ensure that there are sufficient routes into housing to meet need.

2. The Right to Shelter

Where housing cannot be immediately provided, there must be access to decent emergency accommodation  for all homeless people. The Council is committed to ensuring that there is sufficient emergency accommodation available to all, so that no one is forced to sleep rough for want of a bed.

3. The Right to Use Public Space

People who are homeless should have the same right to use public space and to move freely within it, and to rest in it, as anyone else. This includes, but is not limited to, access to pavements, parks, public transport and public buildings on the same terms as any other member of the public.

4. The Right to Equal Treatment

The Council is committed to ensuring that their staff and services uphold the right to equal treatment for all, without discriminating against the homeless.

5. The Right to a Postal Address

The Council shall secure that homeless people who need one have an effective postal address of last resort.

6. The Right to Sanitary Facilities

The Council commits to providing access for all homeless people to basic sanitary facilities – running water (drinking fountains), showers and toilets sufficient to allow for the level of hygiene appropriate to maintaining human dignity.

7. The Right to Emergency Services

The right to emergency services – social services, health services, the police and the fire service – on equal terms with any other member of the public, without being discriminated against because of their housing situation or their physical appearance.

8. The Right to Vote

The right to vote, to be included on the electoral register and to be given the necessary documents to prove their identity when voting in elections, without being discriminated against because of their housing situation.

9. The Right to Data Protection

People who are homeless have the right to data protection, with their data only being shared by public and other services with their consent and only for the purposes of providing services and solutions to them. Homeless people have the same right as everyone else to exercise control over their personal details, particularly their health information, their criminal record if they have one, their housing and their private life and family history.

10. The Right to Privacy

The right to privacy must be respected and protected to the fullest extent possible in all types of accommodation, including communal accommodation structures and informal accommodation lived in by homeless people. The Council is committed to working to ensure that all emergency accommodation provided can deliver on this right.

11. The Right to Survival Practices

The right to carry out practices necessary to survival within the law. While the Council strives for a city in which such practices are not necessary, we recognize that where people have no other option they will seek support from other people through begging or foraging for discarded food to survive. Such survival practices should not be criminalized as such, or banned, or arbitrarily confined to specific areas.

12. The Right to Respect for Personal Property

People who are homeless should have their belongings, including tents and sleeping bags, respected by everyone including public servants. They should never be damaged or thrown away or be removed without compelling need, and if they are removed they should be made available for collection without charge.

13. The Right to Life

The right to life requires public authorities to take measures to preserve life. When people who are homeless (including people in emergency accommodation) die, the Council is committed to ensuring that their deaths are recorded as such, and that in each case there is a reasonably public investigation in order to understand the causes of death and what might have prevented it.

We have closely followed the text of the European document, with two additions. I’ll briefly discuss the different rights, and why they are needed; I will be more thorough over Articles 12 and 13, which are our own additions to the document (although we hope other European cities may follow our lead). I will often reference the European Convention on Human Rights, which is part of our law by virtue of the Human Rights Act 1998.

The Right to Housing

This is the fundamental right for the homeless: not to be homeless. It must underlie all the others. It is not contained in English law, but it is in the Universal Declaration of Human Rights (Article 25) and in the International Covenant on Economic, Social and Cultural Rights (Article 11(1)), international treaties which the UK has signed. At present it is an aspiration rather than a reality; but it cannot be forgotten.

The Right to Shelter

While we work towards making the first article a reality, the entirely achievable goal for the moment is that enough emergency provision must be available to make sure that nobody is forced to sleep rough. I would argue that this is already an obligation in English law. Article 3 of the European Convention requires that public authorities take steps to prevent torture and ill-treatment; there is a breach of Article 3 when someone faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life (R(Limbuela) v SSHD, [2005] UKHL 66). That applies to nearly all rough sleepers and places an obligation on public authorities to remedy the breach. There is good evidence from France that the mere provision of shelter dramatically reduces death rates.

Like all human rights, this right applies to everyone regardless of nationality, immigration status or “local connection”.

The Right to use Public Space

Homeless people should have the same rights to use public space as anyone else. Otherwise you are treating their desperate situation as a reason to treat them differently, to clear them away, to make them invisible.

The Right to Equal Treatment

Underlying all human rights is the right to dignity. You rob those who are homeless of their dignity when you treat them as in some way different from or inferior to their fellow citizens.

The Right to a Postal address

This is very important for prospects of gaining employment or housing. We have some provision already in Brighton and Hove; this right says that all homeless people are entitled to such assistance.

The Right to Sanitary Facilities

It should be clear to everyone how important this is.

The Right to Emergency Services

It is very difficult for homeless people to access the medical care they are entitled to, and many homeless people say that the police do not respond adequately to their complaints or protect them from crime.

The Right to a Vote

All citizens should be able to vote, whatever their housing situation. The proposed identity checks on voting will make it even harder for homeless people to exercise their democratic rights and it is important that there be a commitment to making it possible.

The Right to Data Protection

We know that in the past publicly funded outreach workers have passed on the private information of homeless people without their consent.

The Right to Privacy

This is self-evidently important, and is protected by Article 8 of the European Convention.

The Right to Survival Practices

While people remain actually homeless, they must survive as best as they can, and they should not be criminalized for doing so. People should not be arrested for asking for help.

The Right to Respect for Personal Property

The belongings of a homeless person are entitled to the same respect and protection as everyone else’s. Our property is protected by the English common law. Article 1 of Protocol 1 of the European Convention also protects us against unjustified interference with our possessions by public authorities and requires them to take steps to ensure that they are protected. In practice, as with so many rights, this protection has seemed worthless to homeless people, who see their property confiscated or destroyed repeatedly. In theory it may sometimes be possible to reclaim property, but excessive charges generally mean that it is lost forever.

The Right to Life

There is no official system in the UK for recording the deaths of homeless people, let alone for investigating them. We see this as a fundamental failure of our responsibilities to the homeless. The Bureau of Investigative Journalism has been keeping their own record, collected from local media and other sources, and they report that 499 people have been recorded as dying over last winter alone. This figure is too low; they record 20 deaths in Brighton & Hove, but the Coalition is aware of others not included in that figure. It is so dangerous to life and health to be homeless that the average age of deaths reported is 49 for men and 53 for women.

Article 2 of the European Convention for Human Rights is the Right to Life, the first and fundamental right. Under it, the UK is required to have a legal and administrative framework in place to prevent threats to the right to life; SWEP, the emergency protocol for providing shelter in extreme weather, is an expression of this, as I argue in my blog on the subject. In addition, where there is a specific and urgent threat to life, the state must act. Where the right is engaged but people die, the article obliges us to investigate.

This article, which has the support of FEANTSA, commits the Council to keeping a record of the deaths of homeless people (including those in temporary and emergency accommodation) and to ensuring those deaths are adequately investigated.

Conclusion

Any one of us could be made homeless, or any of our friends or family. No-one is immune; for most of us it would take only one or two pieces of bad luck to put us on the street. How would we be treated then? We know only too well. It is likely that we would be abused, assaulted, spat upon; we might even be killed. We would be endlessly moved along by security or the police, or arrested for begging, or spray-painted or urinated upon as we tried to sleep by people who think it is a laugh to be cruel.

Human rights are for everyone, without exception; but it can be hard to believe that if you are homeless. What value does your fundamental right to human dignity have if you are treated as a second class citizen, or as despicable or blameworthy, through no fault of your own? So we are putting forward this Bill of Rights for the Homeless, to declare out loud what is already the law, to proclaim that we all have human rights, we all have dignity, whatever our housing situation, whatever our misfortunes.

 

Appendix  – Organisations involved

Brighton and Hove Housing Coalition

The Brighton and Hove Housing Coalition brings together groups of activists in the City and the surrounding area to coordinate action and spread information and news about all housing issues. We are independent of local and national government and self funding. Our aims and objectives are to provide an independent voice that supports tenants, leaseholders, homeless and people in temporary or emergency accommodation.

FEANTSA

FEANTSA is the European Federation of National Organisations Working with the Homeless.

Maria José Aldanas, who will be speaking at the launch, is the policy officer at FEANTSA with special responsibility for the Homeless Bill of Rights campaign, and the co-ordinator of Housing Rights Watch.

Housing Rights Watch

Housing Rights Watch is an interdisciplinary European network of associations, lawyers and academics from different countries, who are committed to promoting the right to housing. The right to housing has been recognised as one of the most important fundamental human rights and what we seek is the realisation of every person’s right to live in dignity and to have a secure, adequate and affordable place to live.

The network was set-up in Cardiff in November 2008 in order to facilitate exchange and mutual learning among housing rights experts and advocates.

Just Fair

Just Fair brings social justice and human rights together. They work to ensure that UK law, policy and practice complies with our international human rights obligations.

Jamie Burton, who will be speaking at the launch, is co-founder and Chair of Just Fair. He is a barrister specializing in judicial review, human rights, social and clinical care, housing, social security, criminal justice and environmental law.

 

 

 

 

SWEP and rough sleeping in Brighton & Hove

I have edited the introductory paragraphs of this post to put it in context a little more clearly. I have not altered the body; no-one has yet responded to indicate that anything in it is factually or legally wrong.

The post is critical of the operation of services for rough sleepers by Brighton & Hove City Council over the winter of 2017-18. The context is that the Council has improved its services over those offered in previous years, and that the services it does provide are (it is said – I have not researched this) considerably better than those of neighbouring authorities in the South-East. In particular, the Severe Weather Emergency Protocol (SWEP) has been operated this winter more generously than it might have been.

However, what we have remains (as many have said) profoundly unsatisfactory. I’m going to set out the current state of play and some suggestions for improvement. I welcome comment, and especially welcome any corrections on the facts.

Attitude

I want to start by objecting to an attitude that seems common amongst (some of) our councillors and officers. The opening of the emergency shelter under SWEP is sometimes presented as an enormous effort, selflessly undertaken by overstretched staff; something, we are left to infer, for which rough sleepers should be grateful. It may be that an enormous and selfless effort is needed to open it – if so, that is a serious indictment of the council; it should protect the working conditions of those who carry out its functions. There is no justification for all this; it stinks of charity.

It is sometimes said that there is no legislation requiring SWEP, just guidance. The government, I understand, makes some financial contribution towards local authorities’ provision, and of course the government endorses the guidance issued by Homeless Link (see below) – but it is only guidance, we are told, our council doesn’t have to do anything, it is out of the goodness of its heart that it does so. Charity, again.

Let us be clear. Local authorities are under duties to ensure that no-one should suffer or die unnecessarily in their area.

There are statutory duties (the Care Act 2014, the Mental Capacity Act 2005, the Children Act 1989, the Housing Act 1996), there are arguably common law duties, and overriding these there are duties under the Human Rights Act 1998. I shall concentrate on these last, as everyone (not just lawyers) has a stake in human rights, and as human rights do not permit exclusions; the council’s duty to act in compliance with the European Convention on Human Rights (“the Convention”) does not take account of immigration status or local connection or anything else; it is owed to everyone.

Article 2 of the Convention is the right to life: “Everyone’s right to life shall be protected by law.” More specifically it requires the state to take appropriate steps to prevent accidental deaths by having a legal and administrative framework in place to provide effective deterrence against threats to the right to life[i]. SWEPs are about preventing loss of life; they form part of the state’s discharge of its responsibilities under this article.

Article 3 is the prohibition on torture or inhuman or degrading treatment – in any circumstances. It also requires that public authorities take steps to prevent torture and ill-treatment. In the context of earlier governments’ attempts to create a hostile environment for immigrants by forcing them to starve on the streets, the House of Lords has said that there is a breach of Article 3 when an individual faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life[ii]. That applies to most rough sleepers and places an obligation on the local authority to remedy the breach.

Article 8 requires the state (and the council to have respect for the private and family life, home and correspondence of everybody, with no exclusions. This, with its central requirement to protect people’s dignity, applies to almost every part of the facilities provided to the homeless.

When the local authority operates SWEP, it is or should be acting to comply (among other things) with these Convention Rights. It is a matter of right and duty, not a matter of charity at all. Gratitude is not appropriate; outrage may be.

The Protocol and the Guidance

The SWEP protocol in use at the start of winter[iii] specified that shelters would be opened in the event that the (Meteorological Office) weather forecast for Brighton specified temperatures of zero or below for two or more nights, and that opening the shelters would be considered if there was an amber weather warning. It also stated that it has been drawn up within the provisions of the (government-sponsored) Homeless Link Guidance. During the first very cold period of this winter, in the second half of November, SWEP was not activated; the forecast temperatures stayed a little above zero. But strong, icy north winds flayed everyone who went outside, and the “feels like” temperature, which measures wind chill and is in many ways a better guide to danger to life, was several degrees below zero.

The Homeless Link Guidance[iv], it emerged, had that year abandoned this sort of “bright line” rule for “a flexible approach, based on empathy for people sleeping rough in severe weather, rather than a fixed approach ….” Instead of the three days guideline, “we recommend that a common sense approach is taken – near freezing temperatures or the impact of rain, snow and wind chill should also be considered.” … “Please note that SWEP should be used to prevent death at all times, not only when a fixed temperature threshold is reached. Local Authorities should consider factors such as wind chill, snow coverage and duration of extreme weather when looking at provision. The protocol aims to prevent deaths on the streets so, if this means increasing the number of beds and opening for longer, the Local Authority should do everything it can to facilitate SWEP and prevent harm” (page 6).

This was not a sudden development; as Tasmin Maitland, Head of Innovation and Good Practice at Homeless Link told me, “we’ve been encouraging local authorities to move towards more flexible triggers for a number of years.” Unfortunately this encouragement had not reached our council.

Following a great deal of public pressure from homelessness activists and an emergency motion passed by Hove CLP, we were told that the Protocol had been amended (but see below) and was being operated more flexibly. On 27 January councillor Clare Moonan, Labour lead on rough sleeping, reported back formally on the emergency motion as follows: “As a result of this the SWEP policy was revised to take into account the full Homeless Link Guidance including wind chill, which took effect immediately. I then ensured the policy guidance paper was updated to reflect this. I believe many activists and members have acknowledged this greater flexibility in the operation of the SWEP.”

Nevertheless, there have been several occasions when it seemed obvious to everybody that the shelters should be open and yet they were not; one example being the night of 14/15 February, when following freezing weather a storm produced heavy, wind-swept rain, followed again by very cold weather the next night (when the shelters were also closed). This does not seem like “a flexible approach, based on empathy for people sleeping rough in severe weather”.

There is an informal steering group on rough sleeping with meetings regularly attended by councillors, officials, officers from BHT and St Mungos, and housing activists; I am a member. Since it was first announced that changes had been made, we have been pressing to see this revised Protocol. It was finally supplied to us on 8^th February. The change from the old Protocol consists essentially of a single added sentence:

Throughout the year a common sense approach will be taken to activating the SWEP at other times, to include the impact of severe rain, snow and wind chill.

I am extremely disappointed by this. There is not a single additional commitment made; just the weakest possible repetition of a small part of the National Guidance. Clare Moonan had said publicly that the guidance had been extended to include yellow warnings as well as amber; even that commitment  was missing. In short, all is left to the discretion of officers. This leads us straight to the next issue.

Accountability

The SWEP protocol was not and still is not available on the council’s website. It took two months from the announcement of a change in policy to provide the revised Protocol – which looks as though it was worked out in 5 minutes in someone’s coffee break. These facts are symptomatic.

The protocol states that BHT (the Brighton Housing Trust) and St Mungos are responsible for taking the decision to activate it; but that in addition senior council officers[v] can do so. It is right that ultimate responsibility rests with the Council, as the duties under the Human Rights Act and other legislation are their duties, by whatever means they implement them. However, on 15^th February Jenny Knight, one of the senior officers with the power to activate the Protocol, stated on Facebook: “I do not personally make the decision it is one taken with the SWEP providers in line with the protocol agreed at the beginning of the winter.” This is not the first time that BHCC officials have taken this line in the face of public pressure.

This is the outsourcing of essential council functions used as a cloak to avoid accountability. It does not matter how the council chooses to exercise its functions, but it remains entirely responsible for the outcome. That is good human rights law and it is good democracy.

Extended Winter Provision

The answer to all this shameful chaos must be the provision of shelters throughout the winter, or throughout the year as our campaigners demand. The National Guidance seeks to encourage the use of Extended Winter Provision, shelters open without regard to specific weather conditions, and notes that some local authorities do this already; it lists major advantages to such provision:

• Prevents death on the streets;
• Allows longer-term engagement to provide sustainable move-on;
• More stable for staff, volunteers and people using the service;
• Capitalises on any increased desire to engage from rough sleepers during cold weather.

I would add one more: it makes much clearer to everybody that this is a right, not a privilege.

Exclusions

Our normal provision for homeless people is subject to exclusions that can operate cruelly. One is the local connection requirement, enforced fiercely by this council. Another is the invention of successive governments seeking to create a hostile environment for asylum seekers and “unlawful” immigrants, who are barred from access to most public services. SWEP does not operate any such exclusions; nor, I suggest, should the extended provision. The Mayor of Liverpool has shown the way by refusing to apply the immigration related exclusions in the winter shelter provided[vi]. The National Guidance also encourages this and the human rights obligations on our council, above, make no such distinctions.

However, my understanding is that the new Night Shelter for 30 people opened by our council this year, the Brighton Centre Night Shelter (which is in addition to and separate from the SWEP shelters), has not housed anyone without a local connection and that the immigration exclusions are also applied. Admittedly only a small proportion of rough sleepers are accommodated there but I would urge the council to operate its shelters more generously.

Conclusion

Clare Moonan has written that “I will be working with officers to evaluate the 17/18 winter emergency provision, including SWEP and the night shelter, and we will develop plans for next winter.” As part of this evaluation, let us acknowledge how inadequate the present system is. In the long term, at least, the goal must be:

• to bring services in house where there can be proper accountability;
• to open shelters throughout the winter that are sufficient for all our rough sleepers, whatever their immigration status or situation, so that no-one at all need sleep rough in Brighton.

And before next winter, let us see, published on the council website, at the very least a SWEP that reflects the humane words set out in the national guidance.

[i] The phrasing describing this and subsequent rights is taken from the Liberty website.

[ii] R(Limbuela) v SSHD, [2005] UKHL 66.

[iii] The original and amended protocol are here: SWEP November 2017 and SWEP January 2018.

[iv] https://www.homeless.org.uk/our-work/resources/guidance-on-severe-weather-emergency-protocol-swep-and-extended-weather-provision

[v] BHCC ASC Commissioning Managers with Rough Sleeper Lead; BHCC Head of Adult Social Care Commissioning; BHCC Executive Directors or Chief Executive.

[vi] http://www.independent.co.uk/news/uk/home-news/liverpool-council-rough-sleeping-centre-all-homeless-people-invitation-government-policy-ignored-a8110351.html.