Show us your evidence, Jeremy Hunt

*A shortened version of this article was published on Left Foot Forward on 16 September 2013.



It is now over three weeks since Jeremy Hunt appealed against the High Court’s ruling on Lewisham Hospital and we are still none the wiser as to his grounds of appeal. 

As I explained in a previous article for Left Foot Forward, the High Court ruled comprehensively in favour of the Save Lewisham Hospital campaign in July, quashing Hunt’s decision because he had no legal power to close or downgrade Lewisham’s A&E and maternity services.

It matters that Hunt has not disclosed his reasons for appeal because he is using public money to pursue a case which he is likely to lose and which, despite his protestations, is not in the public interest. Given that taxpayers are paying for this case, we are effectively the client, whether we want to be or not. Hunt’s failure to disclose his grounds of appeal is therefore akin to a solicitor lodging an appeal on a paying client’s behalf and then refusing to inform that client of the legal basis for the appeal or their chances of success.

Disclosure now would allow scrutiny of Hunt’s case and, if it’s weak, allow public pressure to be exerted on the government to drop the appeal before even more costs are incurred.

It is hard to guess at the legal basis of Hunt’s appeal because the case against him is so strong. The government’s main defence at the High Court stage was one of statutory interpretation – Hunt argued that the Health Act 2009, which established a regime to deal with failing healthcare providers, was intended by Parliament to allow changes to services provided by a failing NHS trust (in this case the South London Health Trust) and changes to services provided by any neighbouring NHS trust (Lewisham).

The judge, Mr Justice Silber, provided at least eight arguments based on an analysis of the legislation and statutory guidance which ‘individually and cumulatively’ showed that the legislation was only intended to permit changes to failing NHS providers.   

The only potential basis I could think of for Hunt’s appeal was the possibility that the legislation and the statutory guidance were at odds with what ministers, other MPs and peers thought they were voting for. It is theoretically possible that they believed that the Bill allowed action in neighbouring trusts when in fact it does no such thing. 

This would lead to slightly tricky legal arguments about which Hansard debates if any were admissible in court as an aid to interpretation. The current rules, put simply, are that when legislation is ambiguous, unclear or would lead to an absurdity if interpreted literally, then reliance may be placed upon clear statements made by ministers or other promoters of the Bill.

The Health Bill was, somewhat ironically, led by Andy Burnham who was Secretary of State for Health at the time. I have gone through the Hansard reports for every stage of the Bill and can find nothing which suggests that he or any other minister intended the legislation to allow changes to services outside the failing NHS provider in question.

On the contrary, statements by members and peers on both sides show that the debate was proceeding on the basis that the regime only applied to the one failing provider. I have selected some of the most revealing extracts below.  

Andy Burnham, second reading : ‘… the Secretary of State would appoint an independent trust specialist administrator to review and consult patients, public and staff on the organisation’s future. Recommendations would be made to the Secretary of State, who would report to Parliament the final decision about the organisation’s future.’

‘The organisation’ is the failing NHS provider. Note the use of the singular – this is repeated throughout the Parliamentary debates. Further, one of the key reasons for the High Court’s ruling was that an administrator appointed to a failing trust is only obliged to consult with parties in that trust before recommending a course of action. The judge said that it would be very strange if Parliament had meant to give the administrator and health secretary identical powers over several trusts but then only require consultation in one of them. The above extract supports this line of argument.   

Mike O'Brien (Labour health minister), committee stage: ‘I entirely agree that staff engagement is a central principle of such a regime. When such intervention is triggered, it will understandably be unsettling for staff, so we designed the process to produce a swift resolution while ensuring that staff are engaged throughout.’ 

The Health Act 2009 accordingly provides that ‘The trust special administrator must hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.’ There is no provision to engage staff in any other trust, showing that only changes to the failing trust were intended by ministers.

Lord Darzi of Denham (Labour Parliamentary Under Secretary), House of Lords committee stage : ‘The regime also gives clarity to staff and patients about the process that will be followed, when decisions will be made, and how they can input into the process. Unlike in the insolvency provisions, staff and patient involvement in this process is guaranteed in the legislation.’

The only staff and patient involvement that is guaranteed by the Health Act is that of the staff and patients of the failing trust, again showing that changes to services provided by other trusts were not envisaged.  

Conservative Earl Howe expressed concern that the staff of the failing trust were to be consulted once the draft report had been published but not before: ‘No mention is made there of the staff at the trust, and I ask the Minister why that is. No one would deny that the most important people in this equation are the service users—the patients—but we need to remember that there are others with important rights here, and those are the people who work for the trust and provide the services which, in the circumstances envisaged, would be under threat of closure. Those are the people whose jobs are at risk.’ 

Earl Howe was one of several peers to express concern that the Bill didn’t provide for adequate consultation with those who may be affected. But not once did anyone raise the issue of consultation with patients and staff in other trusts: if anyone had thought that the Bill allowed changes to trusts other than the failing trust, this point would have been raised.

We are therefore no clearer on the grounds for Hunt’s appeal but even more certain that the legislation was only intended to allow changes to failing healthcare providers.

But we shouldn’t be forced to guess reasons, we should be told. And soon. 

Government to appeal Lewisham Hospital ruling: urgent questions for Jeremy Hunt

*Published on Left Foot Forward on 4 September 2013

On Saturday 14 September the people of Lewisham will host a victory parade and party to celebrate the High Court ruling which – for now at least – has saved their hospital. By the standards of judicial language, this ruling was pretty robust. The judge quashed Hunt’s decision to downgrade Lewisham’s A&E and maternity services, making it emphatically clear that the Health Secretary had no legal power to do so.

Unfortunately, Jeremy Hunt has spoiled Lewisham’s party by confirming on 22 August that he will appeal against the ruling. The hypocrisy of this decision is staggering. This government has been highly critical of workers who pursue weak employment tribunal cases on the off-chance of success, relying on taxpayers to fund their one-way bet against their employers. Hunt’s decision to appeal is no different.

As the legal process drags on, the staff and patients of Lewisham Hospital must continue to live with destabilising uncertainty. Hunt has a duty to them, to taxpayers and to Parliament to set out the grounds on which he thinks the High Court has erred and why he thinks an appeal is an acceptable use of public funds.

The case against Jeremy Hunt

The origins of this case lie outside Lewisham in the neighbouring South London Healthcare Trust (SLHT). The SLHT had become financially unsustainable, losing £1m a week due to crippling PFI contracts.

Lewisham Hospital, by contrast, was – and still is – a highly successful, solvent hospital which is part of a separate NHS trust, the Lewisham Healthcare Trust. It had nothing to do with SLHT’s financial difficulties, but this did not stop Jeremy Hunt from approving recommendations to downgrade services at Lewisham as part of the ‘solution’ to the problems in the SLHT.

There are two relevant ways set out in law by which the Secretary of State for Health can deal with problems such as those in the SLHT. The first is a broad power under section 8 of the National Health Services Act 2006 (the 2006 Act) which allows him to give any direction concerning the functions of NHS bodies. This power comes with a counterbalancing duty to consult with a wide range of affected parties.

The regulations governing this consultation are detailed and the process normally takes two years or more.  In addition, any reconfiguration of services must meet the government’s own four tests, including obtaining support from the relevant GP Commissioners.

The second way to deal with a failing NHS trust is the Unsustainable Providers Regime in Chapter 5A of the 2006 Act. It was this method that Hunt chose for the SLHT. This regime, described as an ‘exceptional bespoke procedure’, is designed to deal quickly with failing NHS organisations.

Under the Unsustainable Providers Regime an administrator is appointed to run the failing NHS trust and to make recommendations for its future to the Secretary of State. The administrator must consult with specified parties connected to the trust; there is no obligation to consult any party outside the failing trust. These consultation obligations are deliberately less onerous than those under section 8 so that failing NHS organisations can be dealt with rapidly. There is also only a duty to ‘have regard’ to the four tests for reconfiguration, not to meet them.

Chapter 5A defines the powers that could be legally exercised by Jeremy Hunt in respect of the SLHT and other hospitals such as Lewisham. The key sections empower the Health Secretary to take actions ‘in relation to the trust’ (‘the trust’ being the failing trust in question.)

The meaning that Parliament had intended to give to the words ‘in relation to’ formed the crux of this case. Lewisham contended that they clearly referred to the failing trust and no other, meaning that the only hospital services that Hunt could lawfully change were those in the SLHT.

Hunt’s failed defence

The government argued that the words ‘in relation to the trust’ were intended to have a broad meaning, allowing actions to be taken in respect of any NHS trust which had an ‘appropriate connection or relation to the trust in question.’ Lewisham Hospital fell into this category, it was argued, because it was in a neighbouring trust.

Government lawyers argued that NHS trusts do not operate in isolation and that problems in one were ‘overwhelmingly likely to involve neighbouring trusts.’ This, they submitted, meant that solutions were always likely to involve neighbouring trusts and that Parliament would never have intended to limit solutions to the one failing trust.

In essence, Hunt was arguing that the Unsustainable Providers Regime was intended to give the government almost identically broad powers to those already available under section 8 but with almost none of the safeguards.

Government lawyers also highlighted the statutory guidance for the regime which states that property of the failing trust can be transferred to neighbouring trusts. This, they argued, showed that neighbouring trusts were intended to be part of the solution under the regime.

Even if his actions under Chapter 5A were deemed unlawful, Hunt argued that his decision could not be quashed because he would have reached the same result under his section 8 powers.

Decision

The judgement gives a long list of reasons why the words ‘in relation to’ only refer to the failing trust and not to any of the eight trusts in South East London. I have summarised some of the most striking arguments below, but they are all worth reading in full (see paras 76-94).

1)      The words ‘in relation to’ are used over 200 times in the 2006 Act and there are examples where they clearly limit the meaning to a particular person or period. For example, the words ‘in relation to a person’ can only be referring to that one person. Applying the ordinary rules of statutory construction, the same words will have the same meaning wherever they are used in an Act.

2)      The administrator is only obliged to consult with parties connected to the failing trust. It would be very strange if Parliament had intended to give the Health Secretary the power to change services in the failing trust and all neighbouring trusts but then only require consultation in one of those trusts.

3)      The fact that Chapter 5A specifically allows for the transfer of the failing trust’s property to other NHS trusts is an argument in favour of Lewisham’s case, not against. The judge said that the Unsustainable Providers Regime is a ‘carefully drafted regime’; it is therefore highly significant that this power is specified but the power to change services in neighbouring trusts is not.

4)      The use of the singular in the statutory guidance strongly suggests that only changes to the failing trust were envisaged. For example, it says that trust administrators should make ‘final recommendations…about what should happen to the organisation and the services it provides.’

5)      Hunt could have used the section 8 procedure but instead he chose the Unsustainable Providers Regime. When designing this regime, Parliamentary draftsmen had to balance the requirement for speed against the significant reduction in patients’ rights to be consulted. Limiting changes to the one failing trust balances these competing interests.

The judge also discarded Hunt’s contention that his decision shouldn’t be quashed because he would have reached the same conclusion under section 8. This was dismissed on numerous grounds, most notably that the ‘four tests’ were not met as the relevant GP Commissioners did not support the reconfiguration and that the legal consultation requirements under section 8 had not been followed.

The parade on 14 September may be more protest than party, but the message to Jeremy Hunt will be clear: the people of Lewisham will fight you all the way.

Archive: Religious selection in state schools must end

*Published on Left Foot Forward on 7 August 2013

Imagine if thousands of ordinary state schools in England could refuse to admit children because their parents were practising Christians, or Muslims, or members of any other recognised religion.

Imagine the reaction if these schools could require parents, as a condition of entry, to attest in writing that they had not worshiped in a religious institution for three years, and that they would not do so again in the future.

There would be uproar, and rightly so, at the infringement of religious freedoms that this would entail. There would be stories in the press about the victims of these policies, features on Christian families who could not send their children to their local state school because they refused to give up their faith.

Yet society tolerates this situation in relation to children of non-religious parents. As the Fair Admissions campaign has highlighted so well, many state-funded religious schools can select all their pupils on the basis of religion provided that they are oversubscribed. And the better the religious school, the more likely it is to be oversubscribed.

Given what we know about religious belief and practice in England and Wales, it is likely that the majority of parents and children are adversely affected by religious selection. In aYouGov poll conducted in March 2011, 65 per cent of people answered ‘no’ to the question ‘are you religious?’

And by no means all of the 29 per cent who answered ‘yes’ to this question regularly attend a religious service. For example, a study by Christian Research in 2007-2008 documented the steady decline in church attendance in recent years, with only 6.7 per cent of the UK population regularly attending church (compared with 10 per cent in 1990).

This suggests that most parents either have their choice of schools curtailed due to their atheism, agnosticism or chosen method of religious practice (worshiping privately rather than in a church, for example), or they feel that they have to feign belief, attend regular religious services and jump through other onerous hoops, such as getting their children baptised and sending them to Sunday school, in order to get them into their school of choice.

The Fair Admissions website contains case studies the likes of which will be familiar to many: the atheist father who attended weekly Church of England services for two years so that his son could go to the state primary just across the road; the parents in a small village whose only state secondary school selects on the basis of religion and is therefore inaccessible; the parents in Richmond who are fighting a campaign against the number of selective religious schools in their area which are hampering choice for non-religious families.

The entry in the Good Schools Guide gives a revealing summary of what parents are up against:

“Some of the best UK schools have a religious foundation, and are more or less devoted to educating children of that religion. You need to start attending church weekly at least a year before conception to have a chance at some schools. The good Catholic schools are a vital component of the state school scene in such places as Central London.”

Religious selection is clearly at odds with Michael Gove and David Cameron’s ‘choice’ agenda, as it restricts the choice of the majority of non-religious parents – in some areas severely. It will also restrict the choice of religious parents if the religiously selective schools nearby select on the basis of a different faith.

However this hasn’t stopped Michael Gove approving a further 5,800 new school placeswhich are likely to be subject to religious admissions criteria.

Supporters of selective religious schools might counter that selection only kicks in if schools are oversubscribed, so more religious schools does not necessarily mean less choice for parents in the locality.

If everyone went to school in their local area then this might follow, but there are many cases of children from religious families travelling outside their catchment area to attend a specific religious school. These children get priority over local children.

It is perhaps surprising, given our increasingly secular society, that this palpably unfair system of selection still operates. There are various possible reasons for this: fear amongst politicians of offending those with deeply held religious beliefs; the organisational and lobbying power of religious groups; the absence until recently of a campaign challenging the political consensus in favour of religious selection.

It is also possible that many people think selective religious schools are funded by the relevant religious institution; it could be that many would be surprised to learn that state funds, paid for by everyone, are used in such an exclusive and discriminatory way. As Fair Admissions points out, such discrimination would be unthinkable in other public services such as social care or housing.

There is currently growing pressure on school places in England which means that frustration and anger at the current system is likely to intensify.

The recent launch of the Fair Admissions campaign, therefore, could not be more timely. Their campaign is not advocating the abolition of religious schools, just an end to selection on the basis of religion, and is supported by some religious groups and figures who want a more inclusive education system.

Ending religious selection in state schools is a policy that the Labour party should support.

It is the right thing to do, it is moderate (in contrast to calls to abolish religious schools altogether), it promises real, tangible change in an area that affects many people’s daily lives, it increases parental choice and it is likely to have widespread support. At the moment, Labour doesn’t have too many policies like that.

Archive: Free Schools: rhetoric vs reality

*Published on Left Foot Forward on 2 August 2013

In May I wrote for Left Foot Forward about the chronic shortage of primary school places in parts of England and how Michael Gove’s free school programme is making the problem even more acute.

Despite knowing about this shortage, the government has spent millions of pounds establishing free schools in areas that already have a surplus of places, while areas of shortage are under-funded, particularly London.

We are already seeing the effects, with data released in June showing a sharp increase in the number of classes with more than 30 pupils. We’ve also seen coverage on BBC London News of the growing number of primary schools forced to sacrifice playground space in order to build makeshift classrooms.

And yet the education secretary remains unrepentant. In response to the charge that free schools are not going where they are needed, a spokesperson for the Department for Education (DfE) said in June:

“The vast majority – 91 per cent – of the primary free schools approved last month are in areas of basic need. But the truth is that English schools have not been good enough for far too long. We make no apologies for encouraging new people to come forward to run free schools. The evidence proves that new schools also encourage the ones which already exist to raise their game.”

The 91 per cent figure is spurious – overall, just under a third of free schools are going to areas which don’t need additional capacity. But more significant is the suggestion from the DfE that spending on free schools is justified even where there is a surplus of places because free schools drive up standards in areas which lack good schools.

The claim that free schools are being set up in areas desperate for more good schools is often presented as established fact, along with the assertion that free schools are significantly better than other types of school.

David Cameron, for example, declared last year that free schools

“symbolise everything that is good about the revolution that we are bringing to Britain’s schools. Choice for parents, power in the hands of teachers, discipline and rigour and high quality education in areas that are crying out for more good local schools [My emphasis]“.

This was echoed by Gove in an interview with ITV in May, where he suggested that it wasn’t problematic for a minority of free schools to go to areas of surplus because free schools are ‘beacons of excellence’ and raise standards wherever they go.

Beacons of excellence?

There are currently 81 open free schools with over 200 approved to open either this year or next. The Ofsted inspection results for the first wave of free schools have just been released. Of the 24 schools, four were judged outstanding (17 per cent), 14 good (58 per cent), five were deemed to require improvement and one was inadequate.  On the basis of these results Michael Gove seems to think that he’s been vindicated.  He hasn’t.

For a start, and most importantly, it’s pretty obvious that you can’t draw any firm conclusions from 24 results. To put this in context, there are over 24,000 schools in England. But even if we accept the weight that Gove places on this data, it still doesn’t support his claims.

Comparison with other state schools is not straight forward because schools are assessed in tranches and the assessment criteria keep changing. Since September 2012, the criteria for ‘outstanding’ have changed, and we don’t yet have complete results for the 2012/13 academic year. But it is still useful to look at last year’s results, and the results we have for this year so far (after all, that is the only way we can make any comparison).

At the end of August 2012, 21 per cent of all schools in England were judged to be outstanding and 49 per cent were good. So the free school results are better in terms of schools rated good or above, but worse in terms of achieving the top grade. So much for ‘beacons of excellence’.

Looking at Ofsted’s data view, the most recent set of data for all types of state school shows that, as at 31 March 2013, 22 per cent of the schools assessed were outstanding and 57 per cent were good. These excellent figures are in part down to the large number of schools assessed which had been deemed satisfactory at their last inspection. Other indications for this year include the performance of local authority maintained schools, 70 per cent of which have been judged good or outstanding in the nine months since August 2012.

We need to wait for this year’s results in full to get a better picture, but the results so far do not support Gove’s rhetoric.

Are free schools being set up in areas ‘crying out for more good local schools’?

To test this claim I have compiled data* of local authorities in England showing the relevant measures of school performance along with the number of mainstream free schools, open and approved, per authority.

If free schools are being set up in response to a lack of decent local schools, you would expect the majority of free schools to be in local authorities whose schools have performed below the national average in recent years. You would also expect to see far more free schools being set up in the worst performing areas than in the best.

Almost the exact opposite is true.

Across all the main measures of performance, there are significantly more primary free schools going to local authorities whose schools perform above the national average than there are to those authorities with below average schools.

Further, by every measure of school performance, more primary free schools are going to local authorities whose schools are in the top ten per cent than are being set up in the bottom performing ten per cent.

For example, no primary free schools have been approved for Medway, Hull, Suffolk, Portsmouth or Peterborough, the bottom five performing authorities on the main measure of performance (percentage obtaining level 4 or above in both English and maths). Contrast this with the two primary free schools in Richmond upon Thames and the three going to Wandsworth.

The data for secondary schools is different, with a more even number of schools going to local authorities at different ends of the spectrum. For example, looking at absolute levels of performance in 2012, 61 free schools are open, or will open, in below average authorities with an identical number in above average areas. 16 free schools will go to local authorities in the bottom ten per cent, 14 to those in the top.

When you look at expected levels of performance, however, more secondary free schools are going to the top performing authorities than to the bottom; for example, Westminster and Hammersmith and Fulham get two free schools, Middlesbrough, Barnsley and Knowsley get none.

It is possible that free schools in the better performing local authorities are being set up in pockets with few good schools, but that doesn’t explain why there aren’t significantly more free schools being set up in the worst performing areas than is currently the case.

So of the government’s two main defences for setting up free schools in areas of surplus, one is totally without evidence (that free schools are ‘beacons of excellence’) and the second is demonstrably false (that they are going to areas crying out for more good schools). I’d like to think that Michael Gove will now show some humility, but I won’t hold my breath.

*Data available on request. Accurate as of 31 July 2013.

Archive: Michael Gove should be held to account over the crisis facing London’s schools

*Published on Left Foot Forward on 25 May 2013

Last month the body that represents London’s 33 local authorities issued the government with a stark warning: without additional funds, councils will soon be unable to guarantee a permanent school place for every child in the capital.

It is slightly surreal to think that this could happen in 21st century Britain, but the threat is real. As the report by London Councils states, ‘the problem…is so acute that London boroughs…face a funding shortfall of close to £1.04 billion to ensure that every pupil in London has a permanent school place up to 2015/16′.

This represents 118,000 primary and secondary school pupils who, unless urgent action is taken, will not have a permanent place by 2016.

While this news was widely reported last month, the full extent of Michael Gove’s responsibility for the impending crisis in London’s schools was not conveyed. Coverage focused almost exclusively on the rapidly rising school-age population in the capital and London’s inadequate funding settlement (London has 42 per cent of all place shortages in England but will only receive 36 per cent of the basic need capital allocation for 2013 to 2015).

Missing was an analysis of how Gove’s aggressive implementation of the academy and free school programme has made the pressure on places much, much worse.

Funding academies where there is no shortage of places

If this government has successfully conveyed one message since it came to office, it’s that it doesn’t have much money to spend. You’d therefore be forgiven for thinking that the limited funds that are available for new schools would be reserved for areas with a current or impending shortage of space. Sadly, you’d be wrong.

In April the NUT, using Department for Education (DfE) data, showed that one in five free schools has opened, or are set to open, in areas where there is at least a 10 per cent surplus in places. What’s more, funds are often being used for secondary schools in areas where the pressing need is for primaries. Examples given by the NUT include Bedford, which will have a 38 per cent shortfall of primary places by 2016-17 but which saw a new secondary open last year, and Suffolk, where three secondary free schools have opened at a cost of £3.67m despite a 28 per cent surplus in secondary places.

When confronted with this data, the DfE said that the majority of free schools were in areas with the greatest pressure on places and that ‘more than two-thirds of [free schools] planning to open from 2013 and beyond will also be in areas of basic need [areas where demand is forecast to exceed capacity]‘. For some reason Michael Gove thinks it is acceptable for a third (or just under a third) of free schools to open in areas where there is no shortage of space at a time when resources are scarce and pressure on places is severe, particularly in London.

Stephen Twigg has been pointing out for some time that free schools are being set up in areas of surplus while over-subscribed areas are neglected, but so far this serious misallocation of public resources has not received the publicity it deserves.

Exempting academies from the duty to expand

Local authorities are under a legal duty to provide every child with a permanent school place. However, they have no power over academies and free schools, so they cannot require them to fill surplus places or to expand.

More than half of London’s secondary schools are academies. This means that local authorities have the extremely difficult task of finding space for all secondary school children with less than half of the area’s schools at their disposal. It is quite possible that the ludicrous situation will arise where local authorities cannot provide every child with a school place even though – and partly because – many of the academies in their area have the capacity to take more pupils. It is almost as if the government wants to put local authorities in an impossible position.

It is worth noting that the burden on local authority schools to absorb London’s growing school-age population is leading to a disparity between the quality of their facilities and those of academies. Building new schools in London is difficult because of relative shortage of space and high land costs, so many maintained schools have been forced to extend their existing buildings within school grounds, occasionally with temporary facilities. Sometimes these extensions eat into playground space with clear implications for children’s ability to play and thus for their well-being.

Overspend on academies

The Public Accounts Committee reported last month that the government had overspent on the academies budget by more than £1bn as a result of an ‘excessively complex and inefficient academy funding system’. This is money that could have been used to meet various pressing needs, including building new schools in London.

It’s vital that Labour step up their opposition on this issue. First, I would argue, Stephen Twigg should put public pressure on Gove to commit to financing new schools only where they address local shortages.

Second, Labour should both draw attention to the harm that the academies programme is doing to children who happen not to attend an academy and highlight that the system is deliberately rigged in favour of academies and free schools in a way which only works (‘works’) if such schools are a fraction of the whole. In this context I would like to see Michael Gove asked the following question: does he stand for every school child, or just those who attend academies and free schools?

Archive: The myth of Labour’s excessive borrowing: why it’s time to fight back

*Published by Fabian Review Online on 7 March 2011

One of the most persistent myths in British politics is that Labour cannot be trusted with the economy. Following the financial crisis, the coalition parties revived and enhanced this myth with the mantra that Labour’s borrowing caused all our economic woes. Over and over we’ve heard that the previous government borrowed too much; that it failed to fix the roof while the sun was shining; that the Labour party has an incurable addiction to debt. As propaganda campaigns go, it’s been pretty successful.

Perhaps it’s not surprising that one of the few successes of a government led by a Tory PR man is a propaganda initiative. But it’s an achievement that Labour facilitated, for when the government began to attribute the effects of the global financial crisis to Labour’s “excessive” borrowing, Labour didn’t fight back. If there was any logical reason at all for Labour’s silence on this issue, it was the notion that the public, following the worst financial crisis since the Great Depression, were in no mood to hear Labour cry, “Not guilty!”

That may have been so, but if Labour wanted to choose matters for which to accept liability, they chose badly. Under-regulation of the financial sector? Yes, like the rest of the world. PFI?  Definitely. But not borrowing, which in 2007 (ie before the effects of the financial crisis) was 36 per cent of GDP, 6 per cent less than it was in 1997 after 18 years of Conservative government (see Chart 1).

Chart 1

Labour did not, by any measure, “fail to fix the roof while the sun was shining”. The roof wasn’t broken, and had Labour borrowed less to further fortify the roof, it would still have been blown off altogether by the hurricane that was the global financial crisis. International comparison is a particularly good way of setting the record straight. In the year Labour left office, the UK’s debt was 79 per cent of GDP (including debt incurred through financial inventions, which is not standard as some will be recouped but which allows for easier comparison between countries). In the same year, Germany, the widely-praised economic power-house, had a national debt of 83 per cent of its total output, also including financial interventions (source: Eurostat, Oct 2012).

Unfortunately, Labour’s silence belies all of this. In the time since the general election, the deceitful narrative of Labour’s uncontrollable borrowing has gained real traction; one need only look at Labour’s fear of the ‘b-word’ to measure its success. This matters not only because it dents Labour’s economic credibility, but because it prevents the opposition from forcefully advocating what this country desperately needs: direct government borrowing for capital investment.

As many commentators have been pointing out for some time (and with increasing frustration), the logic of this policy is glaringly obvious. At the moment the government can borrow at negative real interest rates. The flat-lining economy is in desperate need of a stimulus. Capital investment tends to have a very high multiplier effect and this country is in real need of new infrastructure, particularly new council and affordable housing and improved transport links. Considering the human impact of our anaemic economy, the fact that Labour is constrained from advocating such policies by government spin is nothing short of tragic.

But there is no reason for Labour to continue submitting to this spin. Some might argue that this particular ship has sailed; that if Labour were to challenge the government’s narrative, they should have done so straight away. While it would have been better to do so in 2010, this really is a case of better late than never, not least because the government’s poor handling of the economy should weaken its version of events and make the public more receptive to Labour’s fight-back. Once the Labour party starts to tackle the myth of excessive borrowing, it will be much easier to push for government-funded investment.

There are some who might say that advocating such a policy would be playing straight into the government’s hands. That Cameron and Osborne and Clegg will say, “Aha! We always told you that Labour was addicted to debt, and they still haven’t learned their lesson!” But Labour can go on the offensive too, and they have the facts on their side. If this is to work, Labour needs to take a leaf from the Tories’ book and unremittingly drive its message home. Recently a few Labour MPs such as Angela Eagle and Emily Thornberry have spoken out against the idea that Labour’s borrowing is responsible for our economy troubles, but without the support of the top brass and a concerted initiative, their voices are lost on the wind.

Another counter-argument to this idea is that while the government’s message of “Labour borrowed too much and this has caused all our problems” is simple to convey, the counter arguments are too complex and will not penetrate public consciousness. I disagree. I don’t think it’s difficult to say “actually, it’s not true that Labour borrowed too much. Before the financial crisis hit, Labour was borrowing less than John Major was in 1997.” Angela Eagle recently demonstrated on BBC Question Time that it’s possible to get this message across simply and eloquently, saying that there wasn’t “a recession in 38 countries because [Labour] spent too much on schools and hospitals.” Nor is it difficult to convey the message that when the economy clearly needs a stimulus, the government should take advantage of exceptionally low global interest rates.

This would free up Labour in debates and media appearances. Currently when asked the question “so, you would borrow more?”, Labour spokespeople are afraid of giving a direct answer, and nothing turns the public off more than evasion. Instead, Labour should say that, yes, initially the party would take advantage of record low interest rates to borrow for investment in much needed infrastructure. This will help boost the economy, create jobs, and mean that borrowing will reduce as a proportion of the (growing) GDP. This should be contrasted with borrowing to fund welfare payments (to be fair, Labour do this already).

One final thought. Following the second world war, debt was well over 200 per cent of GDP. Yet this was the era in when the NHS was established and the government funded a large house building programme. And yet, miraculously, the world didn’t explode. This reveals the extent of the government’s scaremongering about our current levels of national debt.

Archive: How Tory plans will prevent the poor from accessing justice

*Published on Liberal Conspiracy in October 2011

In his speech to the Conservative conference, George Osborne confirmed the Tories’ plans to charge for bringing employment tribunal claims. Under the proposals, workers will have to pay between £150 and £250 to enter a claim and £1,000 for the claim to be heard. The money will only be recoverable if the employee wins his or her case.

These proposals are ostensibly designed to reduce spurious and vexatious claims, but they will do far more than that: they will make it difficult or impossible for vulnerable people to bring claims at all.

Let’s take the example of a cleaner on the minimum wage who is sacked because of the colour of his skin.

How is he meant to get together over £1,000? It is irrelevant that the money is potentially refundable if claimants are unable to pay it in the first place.

Low-paid, non-unionised workers will be most affected by the fees. They also represent the group most likely to be treated unfairly by employers. Women in particular will be unfairly affected. Each year thousands of women in the UK are forced out of their jobs for being pregnant. How many of these women will be able to bring their employers to justice if the Conservatives have their way?

Having worked in employment law I can vouch that there are many spurious claims brought by employees which are very costly for employers. But there are ways to deal with these claims without preventing genuine claimants from accessing justice.

Employment judges could be instructed to use their existing power to throw out weak cases before they reach tribunal. The payment into court system could be used with more vigour (this is where judges order claimants with weak cases to make a payment into court, refundable only if they win). Or claimants could be required to pay a fee in proportion to their income. These are measures that would deter trouble-makers without prejudicing the genuinely mistreated.

If implemented, the flat fee of £1,000 plus is likely to lead to more discrimination and unfair treatment as employers realise that many of their workers cannot afford to bring them to court. Once again, Tory policy targets the poorest and most vulnerable in our society.