Blinded… a short poem for World Poetry Day

We let ourselves be blinded

By ignorance and hate

That keeps us narrow-minded

And leaves others to their fate

We let the hatred-mongers

Weave fairy tales of fear

“There are those amongst us

Who just don’t belong here”

They mix half-truth with anger

And take real people’s pain

And twist it with their stories

For their own hateful gain

And by the time we see it

It’s sadly far too late

They’ve taken back control

And we’re left to our fate.

 

 

Closed borders and closing minds?

I returned from a brief trip to Romania with distinctly mixed emotions. There was the pleasure of a great trip, seeing old friends, being treated with immense hospitality – and at the same time, as this was my first trip to Romania since the Brexit vote, a sense of profound sadness and what we, as a nation, have decided, and perhaps even more importantly why. I know the reasons for the referendum result are complex, and I know that my views will not be popular with some, but as I see it a very significant part of what lies behind the result is old-fashioned xenophobia. I mean that precisely: a fear or distrust of strangers or foreigners.

Romania is special…

I have a long connection with Romania. My wife is Romanian, and I’ve been visiting regularly for well over a decade. There are all kinds of things I love about the country. The food is generous and fascinating – things like the way they serve pickled chillies and their own special sour cream with their soups to the great cheeses and cakes. Their folk tales, with scary dragon-like ‘zmeu’ and their scarier mothers, and even worse, the wonderfully named witch-like ‘zgripțuroaică’, are excellent. They have great cats too. This is Miți (‘Mitzi’).

Version 2

As for Romanian people, they’re great too – or rather, they’re just people. That’s really the point. There’s nothing to be especially scared of about Romanians – and they certainly don’t deserve the demonisation that they’ve been subjected to over the last few years, particularly by Nigel Farage, who amongst other things suggested that people should be scared if Romanians moved into their street, and memorably told James O’Brien that ‘you know the difference’ between Romanians and Farage’s own German wife and children.  The suggestion that Romanians are essentially cheats and criminals, people to fear, people to worry about, people that we shouldn’t let into our country, is no more credible than the idea that Romanians are all vampires – and yes, I spent half my time on this trip in Transylvania.

Romania isn’t special..

I know Romania – which is why I know the good things about it. I’ve eaten the food, listened to the folk tales, stroked the cats, walked in the forests and mountains, and spent time with the people. This, however, is not a post about how wonderful Romania is. I’m sure the same is true of every country. When you spend time with people anywhere, when you open yourself to what they have to say, when you want to learn about them, you soon find that – if you don’t start from a position of distrust or fear.

That’s what saddens me so much about what seems to have happened in the UK. We seem to be going backwards, looking inwards, and doing so out of fear. Neville Chamberlain was referring to Czechoslovakia when he talked of ‘a quarrel in a far-away country between people of whom we know nothing’ – but that was back in 1938, and one of the great things that I thought had happened in the intervening years was that we had begun to learn a bit more about people from around the world – and from Eastern Europe in particular. Instead, it seems we don’t just know nothing about people from some of those countries – we know less than nothing, as what we ‘know’ is based on lies, exaggerations, small pieces of ‘information’ taken out of context and twisted into something that may be even worse than lies.

Closing borders and closing minds…

The thing is, by having more people from more places in the UK, we can start to learn more, to open more, and to benefit much more – it’s not a coincidence that there is more tolerance in places where there has been more immigration, and support for UKIP and Brexit is greatest in places with the least immigration. The converse, sadly, is also likely to be true. If we have less immigration, if indeed many of those who have come here decide to leave, then we all lose. We lose opportunities to learn, to broaden our horizons, to find something new.

‘But it’s not about xenophobia, we have legitimate concerns’ will be the response of many Brexiters, and in their own minds I’m sure that’s true – and there are huge concerns in the UK at the moment, from the huge levels of inequality and poverty, the creaking NHS, the strained and dysfunctional housing market, low wages and so forth. Blaming immigration – which easily mutates into blaming immigrants themselves – for these problems, however, is very revealing. The evidence, at least the academic evidence (I won’t use the unfashionable term ‘experts’) is generally against making such an association. Of course I am biased – but I am aware of my bias, at least of its existence. Academics refer to something called ‘confirmation bias’ – broadly speaking, that there is a tendency to seek out and to believe evidence that confirms your own theories, your beliefs (and indeed your prejudices), whilst downplaying or disparaging evidence that opposes it.

As someone in favour of immigration (for all the reasons mentioned above) I am naturally predisposed to evidence that makes immigration seem a positive. I do at least acknowledge that. Why, then, would somebody take the converse position: downplaying, denying or disparaging the evidence that suggests (for example) that ‘health tourism’ is minimal, that immigration does not impact upon employment rates, that has an infinitesimal effect on wages and so forth? That is where my biggest sadness comes. The main reason to choose to believe stories that blame immigration rather than those that point out the positives is that those stories confirm existing prejudices. Confirmation bias in practice… in this case confirming the xenophobia.

That’s where my sadness comes in. We’ll survive Brexit – if nothing else, spending time with Romanians provides a strong and healthy reminder that people can get through awful times, outlast awful governments, and find a way to make the best of it. Right now, Romanian people are protesting against a government that literally wants to stop corruption being a crime – but they’ve lived through dictatorship and come out the other side. We’ll do the same – ‘muddling through’ in British style perhaps. That we have to is sad – and that we’ve chosen to close our minds as well as our borders is even sadder.

Brexit and consequences…

Yesterday morning I tweeted about Brexit (as I’ve done a fair number of times), and it went just a little bit viral. Here’s the tweet:

screen-shot-2016-10-08-at-09-48-14

It was an off-the-cuff Tweet, and I had no idea that people would RT it so much, nor that it would provoke quite as many reactions as it has. I’ve replied to a few, but, frankly, it’s not possible to reply to all. The responses, however, have been quite revealing in many ways. As usual, people read Tweets in different ways, and of course this particular Tweet is far from unambiguous. I was asked many times what is the ‘this’ that I’m saying is the fault of the ‘Brexit people’. And who I meant by ‘Brexit people’. I was told I was wrong to lump all Brexit people together. And that we should be looking for unity, not stoking the fires of division.

Some thought I was specifically talking about the dramatic fall of the pound. I wasn’t, but I might have been. Others thought I was blaming Brexit voters for ‘anything and everything’. I wasn’t. Actually, what I was doing was getting angry with those people who voted for Brexit but are now saying ‘we didn’t vote for this’ when they see Theresa May’s increasing nasty and xenophobic government do things like threaten to use EU citizens in the UK as ‘bargaining chips’, sending foreign doctors home as soon as we’ve trained enough ‘home grown’ doctors, and ‘naming and shaming’ companies that employ foreigners.

The thing is, if you voted Brexit you may not have wanted that to happen, but that’s the effect of your vote. And you were warned, many times, that by voting for Brexit you were helping the far right. By voting for Brexit you were ‘sending a message’ that immigrants weren’t welcome. By voting for Brexit you were likely to give more power to the worst kind of Tory. This is what I said on my blog in February, when the campaign was just beginning:

“What’s far more likely with Brexit is that an even more right-wing Tory government will come in, and with even fewer restrictions on their actions will destroy even more of what is left of our welfare state, our NHS, all those things about Britain that those on the left like. It shouldn’t be a surprise that Iain Duncan Smith and Chris Grayling are amongst the most enthusiastic Brexiters. Win the vote and you’re giving them what they want.”

That’s what happened – and I was far from alone in predicting it, and warning people that if they voted for Brexit they’d get more nastiness and a more right-wing government. Now we’ve got it, and if you voted for Brexit, that’s the result.

I’m not, as I’ve also been accused, ‘lumping all Brexit voters together’, suggesting that they’re all racists and xenophobes. Of course they’re not. They have all, however, helped the racists and xenophobes. That’s what the vote did. That’s cause and effect. Some people I know and respect have strong and detailed analytical economic reasons behind their vote – and some expounded them in response to my tweet – but, frankly, that’s by-the-by. Even if their economic arguments  are sound (and I remain unconvinced), they still unleashed the xenophobia.

Others try to suggest that what’s happened is all for the good. We should be making lists of foreigners, we should be replacing foreign doctors with Brits and so forth. That’s also all well and good – but in that case, why be angry with my Tweet? You should be proud of the consequences, if you like them.

I am, of course, one of the out-of-touch metropolitan elite, and I know it. I don’t expect to be listened to. I don’t expect to have any result – but I still have the right to be angry. And I am. I only wish I’d been angrier earlier.

More on Corbyn’s Digital Manifesto…

Yesterday a piece I wrote about Corbyn’s Digital Manifesto was published on The Conversation – you can find it here:

https://theconversation.com/corbyns-digital-meh-nifesto-is-too-rooted-in-the-past-to-offer-much-for-the-future-65003

The natural constraints of a short piece, and the requirements of The Conversation meant that I didn’t cover all the areas, and my own tendency to, well, be a bit strident in my opinions at times means that it may not have been quite as clear as it could have been. I would like to add a few things to what I said, clarify a few more, and open up the opportunity for anyone to comment on it.

The first thing to make absolutely clear is that though I was distinctly underwhelmed by the Digital Democracy Manifesto, it is far better than anything produced by Labour to date, and vastly better than anything I have seen by the Tories. My criticism of it was not in any way supporting what the Tories are currently doing, nor what they are likely to do. I used the word ‘meh’ in my piece because I wanted (and still want) Labour to be bolder, clearer, and more forward-looking precisely so that they can provide a better opposition to the Tories – and to the generally lamentable status quo on internet policy. As I tried (but perhaps failed) to make clear, I am delighted that Corbyn has taken this initiative, and hope it sparks more discussion. There are many of us who would be delighted to contribute to the discussion and indeed to the development of policy.

The second thing to make clear is that my piece was not an exhaustive analysis of the manifesto – indeed, it largely missed some really good parts. The support of Open Source, for example – which was criticised aggressively in the Sun – is to be thoroughly applauded. You can, as usual, trust The Sun to get things completely wrong.

I would of course like to say much more about privacy – sadly the manifesto (in some ways subconsciously) repeats the all-too-common idea that privacy is a purely personal, individual right, when it actually underpins the functioning of communities. I’ve written about this many times before – one piece is here, for example – but that is for another time. Labour, for me, should change its tack on privacy completely – but I know that I am somewhat unusual in that belief. I’ll continue to plug away on that particular issue, but not here and not now.

What I would hope is that the manifesto starts an open discussion – and starts to move us to a better understanding of these issues. If we don’t understand them better, we’ll continue to be driven down very unhelpful paths. Whether you’re one of Corbyn’s supporters or his bitterest opponents, that’s something to be avoided.

Dear Labour Plotters

Dear Labour Plotters

I’m not quite sure how I should address you – in a way I’m sorry to have chosen the word ‘plotters’, but after a little thought it seemed the best word, because what you seem to be trying to do does look very like a plot. Other words have been used – ‘coup’ is perhaps the most common – but ‘plot’ seems the best. Or at least I hope it’s the best, because ‘plot’ suggests there might actually be a plan behind your actions, a plan more than just ‘let’s get rid of our leader, and everything will be better’ along the lines of the Leave campaign’s ‘let’s win the referendum vote, and everything will be better’ plan which seems to be unravelling with remarkable speed since the hideous and momentous events of Thursday and Friday.

Of course I understand why you have not yet revealed the details of your plan – revealing those details might defeat the plan itself – but I do hope it’s a good plan, because you really need one. In making that plan, I’m sure you’ve taken full account of the need to persuade the Labour membership (including me) that your plan is a good one for Labour, and indeed for the country. I’m also sure that you must have learned all the right lessons from both last year’s Labour leadership contest and last week’s referendum. I do hope so, because from the outside it is a little hard to see that you have – but that may well be because all your plans are, quite justifiably, kept nice and secret from the rest of us.

Last year’s Labour Leadership contest

The thing is, last year’s Labour leadership contest was quite something, and I do wonder if some of you aren’t still smarting from it so much that you can’t see what actually happened. Jeremy Corbyn didn’t just win that contest, he absolutely thrashed all his opponents. It wasn’t just a victory, it was a crushing victory. That victory was produced by a great number of things and has been subjected to a good deal of analysis – but one key part of it was how abject the campaigns of his opponents were. They weren’t just bad, they were useless. So the first lesson that I’m sure you must have learned from the contest is not to campaign on the same basis as last time. And, to admit to the failure of last time’s campaigns.

Most of all, what I’m sure you’ve realised is that you can’t just turn back to the members and say ‘look, hasn’t Corbyn been useless, we were right all along, and you made an awful mistake in electing him’ and then expect them to smile and say ‘yes, you were right, and we were terribly stupid last year’.  People don’t like being told they’re stupid – regardless of whether they have been stupid or not. If your approach to replacing Corbyn is based entirely around convincing Labour members that they got it wrong last year, then your plots and plans are doomed to the same kind of abject failure as the last time.

I’m sure you realise this. I hope you do. I really hope you do, because if you don’t, all you’re doing with this plot is causing even more damage to the Labour Party at a time when the Labour Party is needed more than ever. To have driven the results of the EU referendum off the front pages just a few days after its momentous result is quite something – a depressing something.

The next Labour leader

I am sure your plans include plans for Corbyn’s replacement – and I understand in a way why it is not at all clear who that leader might be. I can understand why no-one would want to show themselves right now – but it is a little strange to stage a coup without any idea of what the regime after that coup would look like. The ‘leave’ campaign may have had no plan of any kind after winning the referendum, but at least we knew that it would probably result in Boris Johnson becoming Prime Minister – after all, that was the only reason he chose ‘leave’ over ‘remain’. With your plot, no-one seems to know who you’re planning to put in Corbyn’s place – but given the amount of time you’ve had to work out your plan, I’m sure you have an idea. Whoever it is, I assume it’s not someone that Corbyn defeated so easily last time around, or someone whose main claim to fame is having made a speech that had the Tory benches roaring in applause in favour of military action. With the Chilcot report due very soon, that might not be a very good look.

I hope that whoever you have in mind for the next leader is able to engage with both the Labour membership and the electorate – because both are needed. It’s no good being ‘electable’ if you can’t convince your own party to support them – and as some of you point out on a regular basis, it’s no good getting the support of the Labour membership whilst not being ‘electable’. It’s hard to be both – but whoever you have waiting in the wings to unveil as the next Labour leader and future Prime Minister needs to be able to do both.  I look forward to seeing who they might be – and how they can meet both of these requirements, whilst providing something new and different.

The EU referendum

…because new and different will be needed. Last week’s referendum can be interpreted in many different ways, but one thing it wasn’t was an endorsement of old politics. The idea that there was a consensus around the current Tory approach – elite austerity – has been shattered, so an approach based on the assumption that we need to accept that would be self-destructive at best.  Many voters last week believed they were voting for more funding for the NHS, for example – there was a reason that particular lie was on the side of that bus. This gives Labour a real chance – a chance that would be lost if we simply went back to what was offered last time around by all the candidates except Corbyn. Labour needs to offer hope and a way forward – but a way forward not based on lies, on hate, on fear. I’m sure you all realise this, and will share your vision of this way forward at some point soon.

Whilst the EU referendum offers an opportunity in this way, it also offers a huge trap – the trap of how to address people’s concern over immigration. Labour should be under no illusions that immigration was the critical issue in the referendum. It wasn’t a coincidence that the polls shifted towards ‘leave’ when Farage put immigration on centre stage – people are genuinely concerned about it. Many really believe, despite all the evidence, that immigration is what has caused the problems with the NHS, with housing, with education, with crime and so forth. The trap here is to accept their beliefs rather than addressing those beliefs. Silence is not an option – that much should be clear to everyone – but neither should sinking into the kind of populist xenophobia that UKIP uses and that the ‘leave’ campaign harnessed. It is equally useless – indeed counterproductive – to just tell people they’re wrong (just as you will find if you try that approach on Labour members who voted for Corbyn last year). If Labour had been strong enough and brave enough to take this issue on a decade or more ago, we might be in a very different situation – but it didn’t seem to matter so much back then, so it was all swept under the carpet. It can’t be any more.

There isn’t a magic bullet here – on immigration, or on replacing Corbyn. Both require intelligence, imagination, and a proper plan. Something new and something better has to be offered. On immigration, something real has to be offered to deal with the real problems that are being blamed on immigrants – and not just vague promises. On replacing Corbyn, you’ll need to convince us that you have something better to offer – a new leader that can inspire us, as well as fulfil the ‘electable’ requirements.  Given the coordinated nature of your apparent plot, I’m sure you’ve got someone waiting in the wings.

I look forward to their inspiring appearance.

Kind regards

A Labour Member.

Brexit: straw men and pipe dreams

The ‘Brexit’ game has begun, and with it what look like being months of deception, delusion and demagoguery.  Elections in the UK (and most places, it seems) are generally characterised by bile and bilge but this referendum looks like being one of the very worst if the first few days are anything to go by. Much of the bilge has come from the usual suspects, but what is disappointing to me is how many people on the left seem to be subscribing to a mixture of straw men and pipe dreams. Brexit isn’t an escape from the evil corporate lobbyists and unaccountable courts: it’s all but certain to hand over even more of our lives to the worst of those people.

TTIP

Some people, particularly on the left, seem to think that Brexit is a way to save us from the ravages of the TTIP (the ‘Transatlantic Trade and Investment Partnership’. Now the TTIP is deeply worrying – and is something people on the left should indeed be deeply concerned about. It’s a ‘free trade’ agreement – freeing up trade largely so that big corporations are less fettered by government ‘interference’ – that has been negotiated largely in secret, through the lobbying of those large corporations. Effectively, it could give those corporations mechanisms to override and avoid national laws – in ways that could damage workers’ rights, the environment, local businesses and employment and much more. It might help force the sell off of the NHS – at least that’s one of the fears. So yes, it’s a bit of a nightmare for people – in fact more than a bit of a nightmare.

And yet the idea that going for Brexit would help us avoid its impact is close to ludicrous. One of the key arguments made by Brexiters is that we’ll be able to negotiate our own trade deals. But what kind of deals? The only thing that those people behind Brexit – Grayling, IDS etc – might not like about TTIP is that it doesn’t go far enough. These are the people who actually ARE trying to sell off the NHS, to reduce workers’ rights, to stop the ‘green crap’. These are the people who have cosy meetings with exactly those corporations in whose benefit TTIP is drafted. These are the people who do cosy tax deals with Google, who have secret meetings with the lobbyists. They’re the people who go to Brussels to fight to stop the EU from restricting bankers’ bonuses. They’re the people fighting for the copyright lobbyists etc etc etc.

So yes, we might not have TTIP – though even that’s not clear – but we’ll almost certainly have something even worse. Even more favourable to the lobbyists. How much ‘democratic’ say have we had in our trade deals with Saudi Arabia? With China? How transparent have the negotiations with those two been? What are the terms? Do we even know?

History has shown that the only people to effectively fight against these deals within Europe are the European Parliament. It was the European Parliament who scuppered ACTA (the Anti-Counterfeiting Trade Agreement) with which TTIP has parallels, in 2012 – and they’re our last best hope against TTIP. Not the UK government, who would bend over backwards in favour of TTIP…. So if you want to fight TTIP, you need to stay in the EU and work hard on the European Parliament. Incidentally, that’s a little bit of democracy….

That European Court…

The idea of an overreaching ‘European Court’ interfering with British Justice has been mentioned more than once – even Boris Johnson talked of it in passing – but without either details or seemingly any understanding. When asked how and when it interferes, a couple of things seem to be at the tip of Brexiters’ tongues: prisoners’ votes and stopping us deporting terrorists. Aside from the fact that none of those judgments actually said what people seem to think they said, those cases are from the European Court of Human Rights (the ‘ECtHR) at Strasbourg, which is nothing to do with the European Union.  The court that is to do with the European Union is the Court of Justice of the European Union (‘CJEU’ – but often referred to as the European Court of Justice or ‘ECJ’) in Luxembourg. Strasbourg, Luxembourg, both Bourgs, so I suppose they seem the same, but they’re really very, very different.

There are reasons to be sceptical about some of the rulings but the CJEU has tended to help, not hinder, the people against precisely those groups that ‘lefties’ in particular would like to oppose. It was the CJEU that struck down the Data Retention Directive that effectively enabled mass surveillance in Europe. It was the CJEU that invalidated the ‘Safe Harbor’ agreement (in the Max Schrems case) fighting for people in the face of both big corporations (in this case Facebook et al) and governmental authorities. That’s what the ‘fundamental rights’ that Boris Johnson derided and Brexit would be likely to shrink really mean, just as the ‘red tape’ that Brexit promises to cut is likely to mean workers’ rights, environmental protection and so forth.

But we can vote them out…

The ‘sovereignty’ argument, for many, seems to rest upon the idea that though the current UK government are hideous, at least we can vote them out. It’s a nice idea – indeed, it’s the basis of our democracy – but in this case it’s part phantom part fantasy. Voting for Brexit won’t turn the UK into a socialist paradise. The voters of the UK won’t suddenly see the light and realise that they really want to vote for left wing parties and left wing policies. Whether you think it’s because Jeremy Corbyn is ‘unelectable’, because the ‘electable’ part of the Labour Party is still as useless and anaemic as it was in the leadership contest, because of the constant stream of sniping and undermining from ‘mainstream’ Labour MPs and endless newspaper and magazine columnists, Labour is not riding high in the polls, and shows no sign of doing so.

Add to the equation border changes, funding changes and new lobbying laws and the chances of a left wing government in the near future are even lower. Unless something very radical happens we’re not going to have a Corbyn triumph in 2020 – and to put your faith in such a thing happening is dangerous to say the least. And yet that’s what the ‘left wing case for Brexit’ essentially does. What’s far more likely with Brexit is that an even more right-wing Tory government will come in, and with even fewer restrictions on their actions will destroy even more of what is left of our welfare state, our NHS, all those things about Britain that those on the left like. It shouldn’t be a surprise that Iain Duncan Smith and Chris Grayling are amongst the most enthusiastic Brexiters. Win the vote and you’re giving them what they want.

So yes, we can vote them out – but the chances of us doing so before 2025 at the earliest are sadly small, and the amount of irreparable damage that can have been done before the is immense.

None of this is to suggest that the EU is a ‘good’ thing in absolute terms. What the Troika did with Greece is unforgivable. The continued embrace of austerity, the influence of the lobbyists and so forth are all hideous – but we shouldn’t let that blind us to the short and medium term effects of Brexit. It should also be remembered that for rich people – including the vast majority of politicians – this is all a bit of a game. Whatever happens they’ll be OK. They’ll make money if we stay and make money if we leave. There are profits to be made whatever happens, and they’ll find ways to make them. That’s why they can play games with highfalutin principles, claims about sovereignty and so forth. For the rest of us, though, this could have a much more real effect. That matters.

No Grants, No Fair? – Guest post by Super Cyan…

 

Screen Shot 2016-01-19 at 18.28.04

No Grants:

I finally have something worthwhile to say in 2016, and unfortunately it’s in response to a Conservative measure. An article by @JBeattieMirror highlighted that the Tories have blocked a debate concerning the end of maintenance grants. On Thursday the 14th of January this year, the Third Delegated Legislation Committee discussed the Education (Student Support) (Amendment) Regulations 2015 (Regulations) which was voted in favour for with a ten to eight majority. The explanatory memorandum to these Regulations maintain that 2016 cohort students, will no longer qualify for maintenance grant or special support grant, but will instead qualify for an increased loan for living costs in 2016/17 (para 4.2). A 2016 cohort student according to Regulation 4(iv) is a full-time student who begins their academic course on or after August 2016. Regulation 19 inserts the following into Regulation 56 of its predecessor:

A current system student who is not a 2016 cohort student qualifies in accordance with this regulation for a maintenance grant in connection with the student’s attendance on a designated course (other than a distance learning course) (bolded for emphasis).

Meaning precisely what has been said above, that grants and special support are to be made obsolete for students starting courses this year.

Human Rights

From a human rights perspective, what exactly are the implications of these Regulations? The starting point would be that university courses fall within the realm of higher education (Leyla Şahin v. Turkey – (Application no. 44774/98) para 141), and the corresponding right from the European Convention on Human Rights (ECHR) is Article 2 Protocol 1 (A2P1) which stipulates that:

[i] No person shall be denied the right to education.

[ii] In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

This Protocol is incorporated into UK law through Schedule 1 of the Human Rights Act 1998 (HRA 1998). Section 15(1)(a) of the HRA 1998 sets out reservations in Part II Schedule 3 to the effect that the principle affirmed in the second sentence of A2P1 only so far as compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This as noted, by implication, that the UK accepts unreservedly the principle that “no person shall be denied the right to education” set out in the first sentence of A2P1.

The basis the argument would be that removing the maintenance grant and special support will indirectly discriminate against those from poorer backgrounds making them less likely to go into higher education. As the amount of grant was relative to household income, for example under the old Regulation 57(3)(a), a student whose household income was below £25,000 would receive £2,984. This is where Article 14 would take effect, this is the discrimination Article which states that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 is not a standalone right and can only be used in conjunction with another substantive right (Sommerfield v Germany – (Application no. 31871/96) para 84) in this instance A2P1. In terms of the poorest students, they would likely fall under the ‘social origin’ category which the Committee on Economic, Social and Cultural Rights (CESCR) refers to a person’s inherited social status (para 24). Also according to a handbook jointly collaborated upon by the European Court of Human Rights (ECtHR) and European Union Agency for Fundamental Rights (EUAFR) who regarded social origin as possibly relating to a position that they have acquired through birth into a particular social class or community (such as those based on ethnicity, religion, or ideology), or from one’s social situation such as poverty and homelessness. In the unlikely event poorer students would fall outside the ambit of ‘social origin’ they would fall under ‘other status’ where the Grand Chamber (GC) of the ECtHR in Carson and Others v United Kingdom (Application no. 42184/05) noted that only differences in treatment based on a personal characteristic (or “status”) by which persons or groups of persons are distinguishable from each other are capable of amounting to discrimination within the meaning of Article 14. Economic status based on residential income would and should quite easily fall into this as noted in Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills [2012] EWHC 201 (Admin) (para 29).

The jurisprudence of A2P1 has grown from not guaranteeing access to any particular educational institution the domestic system does provide, or that a breach requires evidence of a systemic failure of the national educational system as a whole resulting in the individual not having access to a minimum level of education within it (Simpson v United Kingdom (1989) 64 DR 188) to the point where for example A2P1 must be read in light of Articles 8-10 ((Leyla Şahin v. Turkey – (Application no. 44774/98) para 155). In the Belgian linguistic case the ECtHR held that although Article 8 does not grant a right to education as it mainly concerns protecting the individual against arbitrary interference by the public authorities in his private family life, that does not mean measures taken in the field of education won’t affect those rights (B para 7). Similarly A2P1 must be read in light of Article 10 which pertain to the freedom … to receive and impart information and ideas (Kjeldsen, Busk Madsen and Pedersen – (Application no. 5095/71; 5920/72; 5926/72) (para 52)). Thus the argument would be that the removal of maintenance grants and other forms of support create a restriction (Leyla Şahin v. Turkey – (Application no. 44774/98) para 157) on the right to education based on social origin/other status and also interferes with Article 8 and 10 in an indirectly discriminatory manner. But for the sake of (shortening) this blog post, A2P1 in conjunction with Article 14 will only be considered .

The trebling of tuition fees:

The starting point is the High Court decision in Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills [2012] EWHC 201 (Admin). This case concerned the trebling of tuition fees and its potential for (indirect) discrimination towards those from poorer backgrounds (para 4), the Secretary of State contested this (para 5). In order to demonstrate evidence of indirect discrimination, the GC in D.H. and Others v. the Czech Republic – (Application no. 57325/00) held that it adopts conclusions that are:

[S]upported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. (para 178).

The GC also accepted that statistic (although not in the past) can be relied upon to demonstrate a difference in treatment between two groups (para 180). Once a rebuttable assumption has been established the onus then shifts on the respondent State/Government (para 189), nor is discriminatory intent required (para 184 and 194).

In Hurley, evidence took the form of the Browne Report, which looked at higher education funding. It drew from research regarding participation rates from more socially deprived students. One such research paper titled Assessing the Impact of the New Student Support Arrangements carried out by the Institute for Employment Studies maintained that since the reintroduction of grants and other support arrangements, there was no significant change in participation but acknowledged that any potentially negative impact on the propensity to enter HE amongst those from lower socio-economic backgrounds may have been masked by the counter pressures arising from the recession. They concluded that the introduction of grants and bursaries did not encouraged greater participation (p60-61). Other research also supported this assertion (para 17). However, it was incorrectly noted that research on the Impact of Tuition Fees and Support on University Participation in the UK which stipulated that a £1,000 increase in loan increased participation by 3.2% (para 17). When in actual fact, the research demonstrated that an increase in £1,000 in fees resulted in a decrease in participation of 3.9 percentage points (not 4.4% stated by the court), and maintenance grants with an increase of £1,000 had an increase in participation of a 2.6 percentage points (not 2.1% stated by the court) and the increase in loans the participation percentage points was never measured. Thus it seems the court itself made an error of fact (which I will come to later).

In the case, Elias LJ accepted that the case law of the ECtHR regarded tuition fees as a restriction on A2P1 (para 40) but that it did not agree that it impair the essence of the right (para 42). When it came to discrimination because of the hike in fees, Elias LJ accepted that an increase in fees alone would discourage many from going to university and would in particular be likely to have a disproportionate impact on the poorer sections of the community, but an increase in fees cannot be looked at in isolation (para 51). Furthermore, the increases in fees were mitigated by loans and various measures (i.e. maintenance grants) targeted at increasing university access to the poorest students (para 52). Elias LJ found that he did not think that at this stage it is sufficiently clear that as a group they will be disadvantaged under the new scheme (para 52). Elias LJ did not find the evidence whether statistical or by way of rebuttable presumption satisfactory to rule in the claimants favour, but accepted that in time the facts may prove them right. However, overall with Mr Justice King agreeing (para 101-102) the High Court did not conclude in the claimants favour (notwithstanding a declaration that there had been a failure in the Public Sector Equality Duty) of a violation of A2P1 in conjunction with Article 14.

Applying Human Rights and Hurley to the present facts:

Before going further into arguments, it is important to note, a certain obstacle, the ECtHR have noted that a Member State’s margin of appreciation (discretion) when it comes to university (the particular case regarded tuition fees) is much wider than it would be when compared to primary and secondary education (Ponomaryovi v Bulgaria – (Application no. 5335/05) para 56). This is why the trebling in fees was ruled as Convention compliant.

But the present situation is different. Firstly when Elias’ LJ referred to an increase in £1,000 loans increased participation, it was noted that the study did not consider this (unless I’m reading the wrong study) and should therefore be rejected and that particular study cannot be used to justify an argument that an increase in loans will increase participation.

Secondly, Elias LJ noted the importance (para 52) of measures directly targeted at increasing university access to poorer students. In the report titled Urgent reforms to higher education funding and student finance it was maintained that an increase in maintenance grants for the most socially deprived was aimed at ensuring that the 2010 Regulations i.e. trebling in tuition fees did not affect individuals from lower socio-economic backgrounds disproportionately (p5). This however, would no longer be the case if grants are to be removed.

Thirdly, Elias LJ did not buy into the assertion that the motivations for the measures were to save money (see para 59 and 62). However, one of the objectives announced by George Osborne last year, was to make savings in the higher education and further education budgets. Andrew McGettigan maintained back then (in 2015) that the cuts would likely affect grants (see here, and here) which was later confirmed by Osborne himself noting that it was unfair on the taxpayer to subsidise people who are more likely to earn more than them (divide and conquer much?). McGettigan also questioned whether the obligation to make savings on the public sector net debt, rather than the deficit, then a switch from grants to loans would not be sufficient as the loans would contribute to the debt. Therefore the argument of saving money would need to be taken into consideration.

One of the criticisms made by Elias LJ in Hurley was rejecting the contention that the decision was made without proper consultation and analysis. To my knowledge there had been no consultation, and thus no responses, so already these measures would be on the back foot.

When it comes to analysis, pointing back to research which stipulated that an increase in tuition fee decreased participation, whilst an increase in maintenance grant increased participation, further research was carried out which stipulated that an £1,000 increase grants lead to an 3.9% increase in participation where it was concluded that ‘[t]hese results underlie the importance of government commitment to non-repayable forms of upfront support such as maintenance grants for undergraduate degree participation.’ Moreover, the analysis from the Institute of Fiscal Studies in their executive summary (p5) noted the possible effects of the measures as a whole. They said that reduction in participation of those from the poorest backgrounds depended upon how debt averse students are and how credit constrained they are, as well as on how responsive participation decisions are to expected increases in the long-run cost of higher education. Furthermore, although participation did not decrease due to the price hikes, the situations are not analogous as grants went up for the poorest and the net present of loans went down. They contend a system that abolishes grants and d the net present value of repayments is likely to increase substantially for those from the poorest backgrounds and therefore would expect ‘both of those changes to have negative effects on participation for the poorest students.’ However, the up-front support would be increased and may have an offsetting effect if these individuals are not very forward looking and/or they are very credit constrained and/or they expect to have low lifetime income. They concluded that t the potential negative effects on participation to be stronger if all of the proposed reforms are introduced.

With regards to debt aversion, research by the University of Edinburgh concluded that interviewees from Scotland and England were concerned that tuition fees may deter young people from poorer backgrounds from going to university (p13). Back in 2005, it was noted that students from poorer backgrounds were more debt averse than those from other social classes (p 15). In a research briefing paper, the National Union of Students, Sutton Trust, University and Colleges Union were not in favour of abolishing grants, whilst University Alliance would have preferred an increase in grants understood that the government had hard decisions to make. Million+ noted the importance of grants, and urged the government to assess the impact of this switch on university access. Universities UK noted financially the situation is no different bar the increased debt, but that changes to the funding systems do not deter students from the poorest background (p14-15). Therefore, some were totally against the idea, and others were concerned that assessments need to be made to determine whether the measures acted as a deterrence to higher education.

According to the Higher education: (student support) regulations 2015 – equality analysis the switch to loans will have a positive impact on students from low income backgrounds by potentially easing financial worries, reducing the need to work excessive hours during term time and supporting students in their studies. At the margin, for some students, it might make the difference between attending University or not (p52). This increase in £766 seems like a lot to a student (because it is) but actually wouldn’t require excessive hours of work, on minimum wage, 12 hours a week spread out of term time. This £766 may well even have been superseded anyway by bursaries that universities offer in combination with the £4k loan and £3k grant). Not that I’m assuming all universities offer them, but they are means tested like the maintenance grant, and the poorest receive the most. All it would seem that switching to loans as the analysis points out, equals more debt (p52), which indeed may never be paid back, but for those that do, perhaps another post on the loan freeze will be necessary.

Furthermore, the impact assessment specifically highlights that woman, mature students, those from ethnic minority backgrounds, those with disabilities, and certain groups of Muslims students are likely to feel the disproportionate effect of these measures (all within the ambit of Article 14) (p82-83). It also acknowledged that single parent mothers and mature students could be negatively impacted upon without any resolution, the other groups were regarded as either not being a significant risk (disability and religious belief), proposals were being put in place (ethnic minority background) (p84-85). Annex 2 points to various factors of increased participation from said groups above, but it would be unwise to ignore grants etc were available then. Either way, the onus would be on the government to disprove all this, as I would contend there are ample inferences to create a rebuttable presumption.

Although there was a Parliamentary discussion which favoured the Regulations, there is also a debate going on as I type, so the Parliamentary angle is still up in the air.

What makes the argument different than what was advocated in Hurley is obviously an increase in fees plus a removal of grants adds a further restriction to accessing universities. But what wasn’t used in the claimants arguments was that discrimination should be seen in light of Thlimennos v Greece – 34369/97 [2000] ECHR 162, where the ECtHR held that Article 14s can also be violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (para 44). And this is the crucial point when in concerns the poorest, disabled, single parents etc. The situation for those eligible for Special Support Grants (SSG) the human rights argument may be stronger as in Burnip v Birmingham City Council (Rev 1) [2012] EWCA Civ 629 (a bedroom tax case) found a violation in line with Thlimennos for failing to treat different circumstances differently without objective reasonable justification. The Court of Appeal further held that the Thlimennos principle was not barred from applying positive obligation to the allocate resources (para 18). Thus this reasoning could be used to suggest that Thlimennos could be interpreted as creating a positive obligation to cater for those who are disadvantaged. However, a similar case in that of MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13 the Court of Appeal , felt that the tax was justified based on the discretionary payments were available. Unlike maintenance grants and SSP, there will be no discretion in their allocation, this would work against the abolition of grants.

Conclusion:

Although the UK has a wider discretion when it comes to universities and how it is financed, they are not barred from treating different groups differently to correct factual inequalities (Stec and Others v United Kingdom – 65731/01 [2006] ECHR 1162 para 51), but consideration must also be taken into account when it comes to those a general rule will affect the most, thus applying Thlimennos may oblige them to permit grants for the most disadvantaged. The jury is out on whether a court would actually buy into my points (THIS IS NOT LEGAL ADVICE, I’m looking at you NUS ;)), but whatever the matter, the argument is now stronger than it was in 2012 because of the further restriction of access to education on the grounds of A2P1 in conjunction with Article 14. The government if taken to court would have to use stronger justifications rather than rhetoric such as ‘why should tax payers subsidise X?’ which could be used to justify essentially anything ever. I couldn’t go into a full ECHR analysis of all the Convention Rights at stake or even all the measures (loan freeze etc) because those require just as much consideration as this one post.