The poor laws by a modern Tory name

The lessons of history are wasted on the history makers - discuss.

It appears that Peter Lilley, Secretary of State for Social Security, proposes to perform a double miracle. He has just suggested, whether he is aware of it or not, a revival of the Tudor and Stuart poor laws, and thereby managed to render the legal historian's interest in those poor laws a matter of urgent contemporary significance.

Mr Lilley's recent speech to the Social Market Foundation made the radical proposal of "localising" certain aspects of social security benefits to cut costs, following the system used in Switzerland, where 3,000 communes decide benefits for the poor. He conceded that there may be disadvantages to the system but felt that it optimised the allocation of resources, citing local community care and local ceilings on rent payments as currently successful examples.

I suspect that those involved in that local community care would disagree and I doubt the Swiss economy is a reasonable model for Britain, but these are not the reasons for my outrage. This proposal is not radical, it is reactionary, retrograde and fliesin the teeth of the Beveridge reforms, which quite correctly wiped all such nonsense off the statute books and into history.

The consolation for those of us who study these matters and occasionally shudder at the realisation of the misery suffered is that lawmakers and administrators were less well informed then, that we should not judge the past by the standards of the present and that such cruelties will not recur. I was wrong. They are recurring.

The Tudor state instigated a series of legislative measures to deal with poverty that focused responsibility upon the parish. This became formalised in the rule that each parish paid for its own poor, and formed the basis of poor relief in England and Wales until 1834 and beyond. The 1601 Poor Law Act made each parish responsible for the relief of all destitute persons living within its bounds. Funding was to be provided by levying a compulsory rate on "every inhabitant ... and every occupier of land".

The 1834 Poor Law Reform Act made no alteration to the rating system, but it joined all the parishes of England and Wales into administrative groups called Poor Law Unions, run locally by elected Guardians of the Poor and paid officials. Each union was to construct workhouses for its poor. The 1834 act introduced a central bureaucracy to standardise and control the system. Peter Lilley's proposals appear to echo this structure.

The localised funding of poor relief was paralleled by the developing rules that only paupers resident in the parish (the settled poor) had a right to that relief. This was laid down in the Poor Relief Act of 1662, which established that a pauper's rightto assistance from the poor rate was dependent upon his being settled there. This was a logical development of the local funding system: if local people had a duty to support their own paupers then they had an equal reluctance to support those paupers who could be viewed as the responsibility of others.

Any pauper not settled in the parish according to the increasingly technical requirements could be removed to his parish of settlement, accompanied by his entire family, upon the order of any two justices of the peace.

Such were the complications of the rules of settlement that this could be the parish where one of the pauper's parents was born and where he had never actually resided. Indeed, the remarkable mobility of the population of 19th-century Britain might have been the consequence of the selective application of these laws. For example, a manufacturing town might pay poor relief to non-settled poor during slumps to ensure that a labour supply would be available when trade picked up. The expense of litigation itself discouraged some action as parish fought parish through the courts.

The 1834 Act was passed after a royal commission had widely investigated the old poor law in action. They discussed abuses such as the behaviour of parish officials towards migrant labourers and others to avoid the possibility of a burden being brought on their parish, or fraud by parish officials in order to prevent paupers acquiring settlement.

One suggestion made to the royal commission was to repeal the law of settlements combined with a proposal to maintain the poor from a national fund. This was rejected because no satisfactory rating procedure could be designed to allow an equitable rate to be set, nor could anyone devise a system to enable funds to be transferred from parishes to government and then to redistribute them back to individual claimants.

Today no such reservations are necessary. All citizens contribute to the national funding of the benefit system and all may draw from that pool as of right if they qualify by need. The localisation of the original poor law was a restriction brought aboutby the ad hoc developments of relief systems and the existence of parish-based local administration. Although many of the more laudable aspects of local government also share these origins, localised poor laws produced many inequalities in implementation.

The Secretary of State's proposals will require both a ceiling and an efficiency target in order to achieve the desired savings. A locality that overspends will surely be penalised, or will there simply be no more money for the benefits, as with the Social Fund? Benefits available now as a right will be awarded on some other basis. Mr Lilley apparently praised the Swiss scheme on the grounds that local people are better able to judge who is a deserving case and to avoid fraud. Thus the families of gamblers, alcoholics, drug addicts, buyers of lottery tickets, keepers of pets, renters of satellite dishes, car or property owners, buyers of expensive toys for their children, non-attenders at church, public protesters, single moth ers, immigrants, refugees, or any group one may envisage which is targeted on a local basis by local bias, may find themselves excluded from participating in a fund to which they may have contributed and to which they were formerly equally entitled.

To avoid the problems that will be experienced by the more popular enlightened localities, no doubt some form of legislation will be hurriedly drafted echoing the 1662 Act, aided this time by the vast amount of personal information held on government files, ostensibly used to defeat fraudulent claims. Some localities may encourage newcomers, many will bar them on the grounds of cost to the fund. Thus the Secretary of State ensures that the mobile population will be those who can afford to live anywhere,without drawing particular localised benefits. When benefits are targeted locally I believe that the only financial savings will be at the expense of the weakest members of our society: the young, the frail, the elderly, the foreign, the u nemployable and the sick. In fact, exactly the same groups that were always sent back to their settlement parish under the old poor law.

The writer is senior lecturer in common law at Liverpool John Moores University, currently researching settlement law.