Government bailouts must not enrich tax dodgers, writes Prof. Prem Sikka

The UK government is bailing out companies affected by the coronavirus pandemic. What do the public get in return?

The initial kitty of £330bn worth of government-backed loans has been supplemented by the Bank of England’s quantitative easing programme of another £200bn to purchase corporate bonds.

The corporate queue for bailout includes airlines, pubs, restaurants, clothing, oil/gas and numerous other sectors. Take EasyJet. The UK government has given a £600m loan to the company. But the terms of the loan are secret, which means that the public and parliament can’t easily call the government or the company to account.

In the normal course of events, companies must ask their shareholders for additional funding when in distress. After all, they have been receiving dividends, share buybacks and other forms of returns for years. Between 2011 and 2018, the UK’s biggest companies paid out £400bn in dividends and £61bn in share buybacks to shareholders. Now most want to provide little/no additional investment. This includes billionaires like Sir Richard Branson and Sir Philip Green.

Choices

If shareholders fail to invest, the company can enter administration, and its control effectively passes to bondholders, or secured creditors – mostly banks and private equity. They can convert their bonds/debt to equity, and effectively become shareholders and nurse the business.

This means that the entity is no longer obliged to make interest payments on its debt and can preserve its cash flow. It seems that many bondholders do not want to exercise this option. In the final analysis, an insolvency administrator can seek buyers for the business. If that option does not materialise then liquidation and a piecemeal sale of assets beckons.

Other countries are given far more thought to the issue of bailouts. For example, Denmark and Poland have stated that companies registered in tax havens are not eligible for any government bailout funds. After all, they did not directly contribute to the public purse and therefore have no moral right to make a claim on it. The UK must also follow the same principles and refuse to reward elites or companies who excelled at dodging taxes and their social responsibilities.

The case of Virgin

Such principles can help to deal with the £500m Government-backed loanand credit guarantee sought by Virgin Atlantic. US-based Delta Airlines holds 49% of the company’s shares. The ultimate holding company of Virgin Atlantic is Virgin Group Holdings Limited, a company registered in the tax haven of British Virgin Islands (BVI). Its sole shareholder is BVI-resident Sir Richard Branson. Therefore, he holds 51% of the shares of Virgin Atlantic. BVI provides opacity and does not levy corporation or income tax.

Virgin Atlantic should ask its shareholders for additional funding. With an estimated wealth of £4.7bn, Sir Richard – a self-confessed tax-exile – should provide additional funds. He controls numerous companies, including Virgin Care which has £2bn of NHS and local authority social care contracts but has not paid UK corporation tax. The company is ultimately controlled through BVI registered Virgin Group Holdings Ltd. Virgin Group has collected £306m in dividends from Virgin Trains.

Two years ago, Sir Richard sold part of his stake in Virgin Money to Clydesdale Bank and Yorkshire Bank for £1.7bn. The new owners also pay Virgin Group £12m a year, rising to £15m, for the licence to use the Virgin Money brand.

Sir Richard has resources. Even his paper-wealth can be used as collateral to generate funds – but he shows little appetite for that.

If Sir Richard decides to abandon Virgin Atlantic, then bondholders can step-in. If they show no interests then the company should ask BVI for support. It is hard to see any moral case for the UK to rescue Virgin Atlantic and enrich a tax-exile who has carefully crafted his personal and business affairs to avoid UK taxes. Of course, the UK government can buy the airline from administrators at a low price to preserve jobs.

Getting something back

The UK government needs to state the principles which will guide its bailouts. They must be based on social responsibility. Currently, the UK government is subsidising 80% of the employee wages, up to a maximum of £2,500 per month, until June. After that unemployment is likely to spike. To prevent that, bailed out businesses must guarantee not to cut jobs for the next 12 months.

Bailouts should be used to bring essential industries under public ownership. In return for bailout funds, the recipients must terminate all strategies for avoiding UK taxes and embrace socially responsible objectives.

These should include targets for reducing carbon emissions, gender and ethnicity pay gap; greater diversity in company boards and employee-elected directors on the boards of large companies. Companies must not haemorrhage cash through payment of excessive dividends. Director remuneration should be no more than 10 times the lowest wage in the company.

Any government bailout has to protect jobs, taxpayer and social interests. It must not reward bad companies or corporate elites who eye a sack load of money to enhance their own wealth. It’s time to see some strings attached.

Prem Sikka is Professor of Accounting at University of Sheffield and Emeritus Professor of Accounting at University of Essex. He is a Contributing Editor to LFF and tweets here.

ByStefan Bielik

After rail privatisation, Virgin Trains were presented as an engineering triumph – but they amounted to nothing more than a sewage-scented rebranding of British Rail’s managed decline.

Since Britain’s rail network was privatised in the mid-1990s, the matter of its return to state control has dogged the country’s left. British commuters have been forced to watch on as European neighbours modernised and pushed forward technologically, while their own network was left to rot in the hands of avatars for PFI and PPP like Richard Branson. As we pick through the aftermath of December’s catastrophe for the British left, considering what worked and what we ought to rethink, the renationalisation of the entire rail network should be one of the pledges we consider inarguable – as well as the more obvious reasons for government ownership, such as job creation and the potential for revenue generation, the demise of British Rail is an under-reported moment in the decline of the UK’s manufacturing industry. Simply put, reviving this would be one step towards regaining the mythologised days when the country Still Made Things, and draw manufacturing industries away from defence sectors, allowing us to head off nativist swerves by right-wing factions without compromising our values.

To illustrate, a name that will invoke instant recollections of a very specific smell to users of the West Coast Mainline – the Pendolino. Bought by Virgin Trains to serve its flagship route acquired in the mess of rail privatisation Britain underwent in the 1990s, these trains began serving the route in the giddy heights of the Blair years. Their fast acceleration, racing car nose and futuristic interiors were shown off in a typically vainglorious campaign, featuring plenty of shots of Richard Branson gurning and giving thumbs-ups out of driver’s cab windows. This press release hints in its corporate way at the excitement surrounding manufacturer ALSTOM ‘introducing tilting technology to the UK’ – but that is not, in fact, the truth, and overlooks a story which almost by itself makes the case for nationalised rail. 

The UK’s rail network, like so much of the country’s infrastructure, suffers from a problem of early adoption followed by a failure to continue innovating. Being pioneers in modern rail, the first to construct wrought iron tracks as well as introduce steam engines, has not led to sustained dominance in the industry. Contrary to other European leaders in the field such as Austria or Switzerland, both largely nationalised since the late 19^th century, outside of wartime Britain’s trains did not come under state ownership until the Transport Act of 1947. This laid out plans to finally bring the four private companies, created by forced consolidation under previous Acts, under state control (of course, at this time it had not occurred to anyone to advocate separating track and rolling stock ownership, but more on that later). The initial period of private ownership had not been a barrier to the early expansion of routes, both freight and passenger, as profitability and relative usefulness of lines largely managed to happily coexist – indeed, the irony of nationalisation leading rather rapidly to the Beeching cuts, as opposed to the railways existing as a public good without the obligation to turn a profit, is often cited as proof that privatisation is best for Britain’s trains.

However, this is of course an argument that deliberately limits its scope. The fatal blows to Britain’s pioneering developments in locomotion were the combination of nationalisation with a succession of Conservative governments that seemed determined to prove the unworkable nature of state-owned rail, as well as a decision to prioritise motorways and other road construction – the Beeching Report even advocated transferring freight transport from rail to road. Consequently, while Japan was spending 400bn yen, or roughly £400m at the time, opening its pioneering Shinkansen lines in the mid-1960s, Britain was following up on the rail network cuts of the previous decade by pledging £1bn of investment in new trunk roads, just to ease car access into London. The country was moving firmly towards its model of suburban living, which reached full fruition by the 1980s. Reading’s Lower Earley – at one point the largest private housing estate in Europe – was archetypal. Endless roundabout junctions, the absence of a clear centre and no proper pedestrian routes to even access one, and crucially, almost no public transport connections – and certainly no rapid transit or light rail. What Lower Earley does have is a 5-minute drive to a motorway junction for almost all houses, and a dual carriageway directly into the town centre. It is, like hundreds of similar estates across the country, an area where it is near-impossible to live without owning a car. Even without the pernicious tactics of US car manufacturers (buying tram companies in order to close the lines, as happened across the USA), the UK managed to achieve a market ready-made for the motor vehicle industry.

This unwillingness to invest in grand public transport projects (at least, outside of London) left Britain with a network of railways largely built in an age when ‘high speed train’ meant something that travelled at a top speed of around 125kph (78mph). By the beginning of the 1970s, following the Shinkansen’s initial success as it took passengers between Tokyo and Osaka for the 1964 Olympic Games, then over 100m passengers in the following 3 years alone, other countries began to take interest in the potential for mass transit at high speeds. In Britain, it would not be a simple, or cheap task however. To make the technical part as simple as possible, deployment of trains going faster than around 200kph (125mph) on older lines encounters three main problems: firstly, capacity – clearly, a train capable of travelling at over 200kph cannot maintain full speed on a line also used by freight and local passenger trains travelling at 90. Secondly, every high speed train in the world is equipped with an in-cab signalling system, allowing drivers to rely on computerised internal systems and automated braking systems rather than watching for trackside signals, thus removing the risk of error. Finally, the curvatures on British tracks would result in derailment for trains travelling at higher speeds, or at the very least extreme discomfort for passengers as lateral forces shift them in their seats. With the government clearly unwilling to embark on a costly network of more direct, fast lines, any plans for bringing Britain’s trains into the modern age seemed to be limited to the constraints of the existing network.

Therefore, in 1975, British Rail’s HST project rolled out the InterCity 125, a compromise that could achieve 125mph, albeit with far less acceleration than international competitors thanks to its diesel-electric engines. Like many stop-gap solutions in British infrastructure, these near-50 year old designs still form an important part of the country’s rolling stock today, but with a little more willing and investment, a project being worked on in the background could have led to a very different story.

In 1981, British Rail invited journalists to Glasgow for a trial run of a new type of train, a sleek, futuristic, electric train named simply APT – Advanced Passenger Train. Faced with adapting to the old network, designers and engineers came up with the solution of creating a technology that used sensors and computerised hydraulic systems to tilt into corners, thus enabling the train to maintain high speeds where traditional units would have had to brake. This technology had been in development for over two decades by this time, and despite that domestic fanfare (including a notorious PR video presented by Peter Purves) was not the first of its kind in the world – Fiat Ferroviara, the Italian firm’s rail division, had built an experimental Electric Multiple Unit capable of similar technological tricks and deployed it on the line from Rome to Ancona in 1975. It was nicknamed Pendolino – a diminutive version of the Italian word for pendulum – the first usage of that name. Back in Britain, BR hoped that the APT would help them compete with the burgeoning motorway network, as well as the rise of aeroplane travel between Britain’s more distant cities. As is clear from the absence of APTs from the modern rail network, this was not to be the case.

Things began to fall apart from that initial promotional ride. Despite Purves’ best attempts to talk at a normal volume over clattering crockery (“it’s smooth, and it’s quiet”) as the train tilts into another Victorian-era curve, and a best-ever time of 4 hours 15 minutes for the journey from Glasgow to London, the newspapers were full of reports of passengers feeling sick thanks to the constant rocking of the tilting system, and a sensation that can be summed up as the inverse of seasickness – ie, a perception of movement without the body experiencing correspondent effects. Soon after, a northbound service was suspended at Crewe thanks to a frozen braking system, and the problems continued until BR was forced to withdraw the train from service. Its time serving West Coast Mainline passengers had lasted under three weeks. Taken out of service, and sent for re-evaluation, the APT trains made a final, unheralded appearance from 1984 for a year or two, before this last gasp of British Rail’s development department was killed off for good. £50m had been spent on the project across its entire history.

Meanwhile, Fiat – an awkward case, given that they are a private company who benefit from close associations with the Italian state – were continuing research on the technology after the relative success of prototype experiments in Italy and Spain (through a collaboration with state-owned RENFE). Taking lessons from the failure of the British project, the project finally created a train suitable for regular passenger service in 1988, with ETR-450 models running initially from Rome to Milan. Of course, in this time France had opened its TGV, with SNCF invoking Aristotle in its inauguration (‘Le progrès ne vaut que s’il est partagé par tous’ – progress is worthless unless shared by all), reaching speeds unimaginable in the rest of Europe and doing so with at least the pretence of socialist ambition afforded by the Mitterand government. Spain was beginning construction on its own dedicated high-speed network, and Germany was progressing towards lightning speeds at a more measured, methodical pace through its Intercity Express network. Each of these focused on newly-built, dedicated lines, though – not something possible in the Major or Blair years of Britain, where large infrastructural projects were predicated on private sector investment and guaranteed income, as with the M6 Toll Road or Dartford Bridge. 

Virgin Trains, like all other products in the Virgin brand, was something that seems only possible in the “things can only get better” era of the late 90s. Concentrating solely on the sexier intercity routes, with their fast speeds and glamorous routes into the heart of London, owner Richard Branson did all he could to bring his personality to the distinctly dull world of rail transport. Bikini women, ticket discounts, Rik Mayall-fronted adverts (with an apparent brief to channel the train knight himself) – the British public were bombarded with efforts to entice them back onto trains and off the motorways. The problem was, no amount of presentation could hide a passenger experience involving 20 year old trains and hastily-repainted interiors, with slam doors, shaky rides and toilets that still emptied directly onto the tracks. The answer, inevitably, was the Pendolino. Those rounded-edge interiors, the space-age toilets that a good half of users failed to work out how to lock, sliding doors and, in the Branson rewriting of history, completely new technology in Britain finally gave Virgin an end product that matched their marketing. At this point, due to various corporate buy-outs, the trains (registered as BR Class 390) were produced by the French conglomerate Alstom, but that technology developed simultaneously by Italian and British engineers was still there. Of course, in a different timeline, these trains are deployed by British Rail far earlier after repeated testing thanks to sufficient investment levels. 

In our timeline, however, the Pendolino (and, in a stroke of bad luck, Virgin’s diesel equivalent Bombardier Voyager) was an adapted version of a technology developed for slightly different circumstances, and with more than a few design flaws. As far as passenger experience went, the most famous of these was the constant smell of sewage thanks to a construction flaw in the air intake system. On top of this, promised improvements to the line that would have allowed the train to operate at its top speed never materialised, thanks to any track work being in the hands of the disastrous, even fatally so Railtrack company. And yet in other countries, the technology was booming. Italy, Poland, Czech Republic, Finland, Slovenia among others – almost all, interestingly, with at minimum a retained state interest in the rail network – all by now use train units which trace their design back to those first BR and Fiat trials.

Of course, a continuing reliance on now 40-year old diesel trains is by no means the end, nor even the beginning of the list of problems with UK transport. A perfect storm of decades of under-investment (a tactic of ‘managed decline’ used effectively in this area as well as health services and of course the entire city of Liverpool) and the extreme centralization of the country’s economy have led to, London aside, a service that fails to meet the needs of its potential users. Those fortunate enough to live on a spoke from London to one of the cities deemed important enough to have a main line to the capital can generally rely on fast travel to other places along this route, but lateral travel between these lines is generally awful, thus increasing reliance on cars. 

Perhaps the most brutal example of this is to consider a trip between the Welsh coastal towns of Haverfordwest and Bangor, which would take under four hours by road. The train journey, however, involves at best a little over seven hours, a change at Cardiff and a decent amount of time across the border in England. Both of these places, of course, have much quicker train connections to London – indeed, Bangor has a faster connection to the UK capital than to Cardiff, the capital of its own nation. Compare this with, for example, a train between German provincial centres of Bremen and Rostock – a similar distance but with a journey time less than half that of the Welsh example above. 

Of course, the UK is not alone in having poor intercity connections outside of the capital – Spain suffers from a centralised hub-and-spoke model that for instance means the fastest route from Murcia to Malaga (again around 200 miles/320km) by train involves first travelling to the central province of Castile. Spain here has the excuse of being ruled by a fascist, Madrid-focused government for 40 years. France meanwhile has since World War II strived to ensure an even economical distribution around the country – indeed, the TGV project was arguably as much about ensuring fast routes for northerners going on holiday as it was about ensuring non-Parisians could get to Paris quicker. But it’s within metropolitan areas that the difference between Britain-outside-of-London and everywhere else is largest. Suburban S-Bahn systems can be found in most major cities of central and western Europe – from Kraków and Ostrava to Stuttgart and Le Havre, those living in peripheral estates and villages can still rely on regular commuter trains to their regional centre. In Britain, the ‘Northern Powerhouse’ capital of Manchester is served from Bolton and the Peak District, natural feeder areas, by one of the most infamous projects in British rail history, the bus-on-rails Pacer. 

As a country led by the party most responsible for gutting its public transport prepares to embark on its most ambitious infrastructure project since the Channel Tunnel with HS2, it seems that we are no closer to a system that imagines users wishing to occasionally travel to somewhere other than London or a town on the way. The full, theoretical plans including HS3 or ‘Northern Powerhouse Rail’ go some way to righting this, albeit exclusively in England and with a best-case completion date of some 20 years hence. Compare that with China’s high-speed rail network, which through essentially applying mass-production principles to rail construction (and, admittedly, the world’s most plentiful supply of labour) has gone from having a single ‘fast’ line with a 100mph (160kph) limit in 1995 to thousands of miles of some of the highest-speed tracks in the world by now, and plans to continue expanding and improving. On top of this, the private Czech carrier Leo Express will this year deploy Europe’s first Chinese-designed trains, cementing the nation’s place as a major player in rail. It is worth noting that some of the greatest leaps forward in this journey were made during the global recession which started in 2008, thanks to the CPC’s economic stimulus packages. This isn’t just an economic concern, either – the net result of high-speed rail between important cities has a drastic effect on domestic flights and car journeys. Thanks to state ownership and thus a lesser incentive to turn direct profits, the Chinese government (just like the French before them) were able to aggressively price their tickets against airlines, and with centre-to-centre connections and no need to ‘check-in’, as well as the ability to work en-route, domestic car and plane journeys fell dramatically.

Some of the problems of Britain’s 19th century infrastructure are unsolvable without tearing everything down and starting again. The legacy of its train lines being built up by competing Victorian businessmen led to many oddities, such as Wigan’s two stations, or the five different answers you would receive to the question ‘what is the main station in London?’ But there are many more aspects that can and must be fixed – and it is clear from countless historical examples that this can only be done with bold, organised state planning, without profiteering.

Tribune link

Since 2010, the government has undertaken extensive spending cuts, subsequently linked with rising poverty, food bank use, and serious health issues. Kate Harrison identifies key factors that explain why the public’s response to austerity has been relatively muted.

Since 2010, successive governments have instigated round after round of spending cuts, reducing or closing many public services. However, the government’s 2020 budget, followed by the spending necessitated by the COVID-19 crisis, appear to have brought an end to cuts, at least in the short term. Many, though, now faced with unemployment, are being forced to turn to government support such as Universal Credit. They have been met by a benefits system depleted by long-term underinvestment and face the reality of living on £94 per week, or less. Many who previously were shielded from austerity’s worst effects must now face the reality of it.

Under austerity, the UK has seen cuts to spending disproportionately spread across the country, with deprived areas typically facing the highest cuts to services. Over the last decade, child poverty has risen, foodbank referrals have more than doubled and health inequalities have widened. Those who are most in need have borne the brunt of the cuts: people with the most severe disabilities have faced a burden of cuts 19 times higher than the rest of the population.

Despite this, the public response to austerity has been relatively muted, with a spate of protests in the initial years of the coalition government and relatively little political activism since. My research looks at why there hasn’t been a stronger public response to these measures. Some argue that Brexit could have been a protest vote against the cuts and their consequences for many people. The evidence on this is so far limited, but it is still worth noting that if austerity did play a role in the UK’s vote to leave the EU, this is an indirect and nonspecific way of protesting the cuts. As such, it is important to understand why people are not taking more conventional approaches to opposing austerity.

Across many forms of political participation, including voting and protesting, it is typically those with low wealth, income, and education who are least likely to take part. Given that it is these groups who are suffering the most under austerity, without their voices being heard the political establishment are given no reason to change their policies. This maintenance of the status quo then allows the most powerful members of society to preserve their position of privilege.

The key question is therefore why are more people not expressing opposition to austerity? Research suggests that people need time, money and civic skills to participate. However, when there is an economic shock like the financial crisis of 2008, there can be a spike in protest behaviour as people express their grievances, such as a demonstrating against rising unemployment.

This theory of grievances as motivation for protest can explain the early protests the UK saw, such as Occupy London and student protests against rising tuition fees. Nevertheless, what this doesn’t explain is why these protests didn’t continue, as austerity deepened and public services were reduced or closed. This suggests the picture is more complex.

Building on the two theories mentioned above, I propose a four-fold explanation for the relatively low levels of political activity seen in response to austerity. The starting point will be the argument that resources like time and money are needed for political participation. Under austerity, those from disadvantaged and minority groups have lost out the most, meaning that those who already had the least time, money, and resilience have fewer resources now than they did before. As such, participating in politics is even less accessible for those with disabilities, on benefits, and low incomes than it was before the cuts began.

But what about those more fortunate, who had more resources and haven’t lost out in the same way? The theory of grievances suggests that those who have experienced an economic or political struggle will engage in political participation. For those whose experience of austerity has been less extreme and less personal, there is little cause for mobilisation. Indeed, following the introduction of harsh austerity measures in Spain, the participants in the wave of strikes and demonstrations that took place were disproportionately those affected. For the population as a whole, political engagement actually declined, on average, after the introduction of cuts.

There are two further factors that are important to consider for a more nuanced understanding of low political participation. Firstly, the government chose to talk about the cuts in a way that made them seem both necessary and unavoidable. They made arguments such as ‘we are not doing this because we want to, driven by theory or ideology. We are doing this because we have to’. Despite some arguing that austerity is, in fact, an ideological choice and not the only solution, the British public largely accepted the narrative that there is no alternative. This may have led to a sense that participation is futile, because the lack of a viable alternative means that political action is unlikely to result in change.

Also, for those most affected by the cuts, the government’s choice to evoke a ‘blitz spirit’ narrative of ‘sticking together as a country’ is likely to have come across as insensitive, if not insulting. The highly unequal way that cuts have been implemented is likely to exacerbate distrust in politicians who try to claim that we are in it together.

The final consideration in understanding the impact of austerity is the broader picture of participation. There is evidence that trust in politicians has been declining while discontent with democracy grows. The distrust in politicians and lack of political efficacy fostered by the government’s austerity narrative is therefore likely to exacerbate more general recent trends of declining political participation.

In combination, these factors will typically lead to lack of political participation through two possible avenues, shown in the figure below. Generalised dissatisfaction with politics forms a backdrop for all, undermining participation even before austerity began. For those significantly affected by austerity, opportunities to engage in politics are diminished by the loss of resources to participate caused by spending cuts. The ‘in it together’ rhetoric then fosters alienation from the government, further exacerbating the disinclination to participate.

Figure 1: Theoretical model to illustrate low political participation in response to austerity.

Meanwhile, for those on higher incomes and less dependent on public services, the low personal impact of austerity produces no significant grievance to communicate, resulting in little motivation to act. Additionally, the rhetoric of austerity as necessary and unavoidable fosters the belief that nothing would change if they were to act. While general participation levels are already falling, more provocation is needed for political participation.

This theory demonstrates the complex ways in which people can become silenced by austerity, which is deeply problematic because those who are most dependent upon the state face the most challenges in engaging with politics. Those on low incomes, with disabilities or otherwise marginalised have lost out the most and, with their influence further diminished, are only likely to lose out more.

______________________

Note: the above draws on the author’s published work in Representation.

About the Author

Kate Harrison is a PhD Researcher at the University of Southampton

LSE blog

Andrew Street outlines four reasons why it is apt that the temporary hospitals set up in response to COVID-19 are named after nursing pioneer Florence Nightingale. He explains how some of the key challenges currently facing UK healthcare professionals are similar to those Nightingale had to deal with.

It is fitting that the exhibition and convention centres rapidly equipped in the UK to house those suffering coronavirus are named Nightingale hospitals. This year marks the 200^th anniversary of Florence Nightingale´s birth on 12 May 1820, and there are several echoes from her career to the current crisis.

Counting deaths

For starters, take the controversy in trying to establish how many people have died from coronavirus. Most countries are still counting only those who died in hospital having tested positive for COVID-19, not those dying in care homes or elsewhere. And there remain questions about whether a positive test for COVID-19 should be considered the cause of death or just a contributory factor.

Nightingale faced a similar problem in her role as superintendent of the female nursing team working in the English general military hospitals in Turkey. On arrival in Scutari in November 1854, she found three separate registers of those dying in hospital: the Adjutant’s daily head-roll of soldiers’ burials, the Medical Officers’ Return, and the Orderly Room return, all of which gave a different account of the number of deaths. She soon set about rectifying this ‘statistical carelessness‘ in order to record accurately how many soldiers had died. Unfortunately, we are still a long way from being able to compare meaningfully the death toll from coronavirus between one country and another.

Classifying diseases

On returning to England in 1856, Nightingale realised that each hospital had its own approach to recording information about its patients. So she created Model Hospital Statistical Forms which were recommended for widespread adoption in 1860 at the London meeting of the International Statistical Congress.

Nightingale had the forms printed and hospitals started using them. Guy´s Hospital published details of its cases from 1854 to 1861, including a table reporting 15 Classes of Diseases and another reporting Causes of Accidents, categorised into 22 groups. Group 21, for example, records all those hospitalised having suffered ‘Bites of animals, 7 dogs, 2 adders, monkey, horse, rat, elephant, and woman’, revealing a somewhat surprising assortment of assailants on the streets of London back then or indeed whenever.

From 1862, hospitals in London began to publish their data annually in the Journal of the Statistical Society of London. By 1866, the fifth and final year that the series was published, the statistics covered 29 hospitals across England. Publication ceased after a committee formed by the Royal College of Surgeons ‘reported adversely upon Miss Nightingale’s Forms‘ claiming it was too costly to collect the data and to make valid comparisons.

Nightingale´s ideas were eventually resurrected by Jacques Bertillon whose system was adopted in 1900 as the first International Classification of Causes of Death. In June 2018, the World Health Organisation launched the 11^th revision, now known as the International Classification of Diseases and, on 25 March 2020, issued emergency ICD-10 and ICD-11 disease and cause of death codes for COVID-19.

Protecting staff

Nightingale herself used data about those who suffered disease and died to push for improvements in care – both for patients and staff. In 1858, one of her papers with William Farr was presented at the Liverpool meeting of the National Association for the Promotion of Social Science comparing mortality rates of hospital nurses with civilian women of a similar age. She identified a higher mortality rate among nurses, demonstrating that they had greater exposure to fever and cholera. She used the data to maintain her pressure on hospitals to improve hygiene and to provide better protection of staff.

She also urged hospitals to keep a register to support a superannuation fund for nurses. If adopted, her nursing register would have recorded the name, age, employment dates, reason for and state of health upon leaving the service, and date and cause of death for those dying in service. Surprisingly even today, this information is not always readily available: on 2 April 2020, the chief executive of the Royal College of Nursing complained to the Secretary of State for Health and Social Care about the difficulty of getting data about the number of nurses dying from COVID-19. Nightingale would have shared the chief executive’s indignation, stating that ‘money cannot replace … the loss of a well-trained nurse by preventable disease‘. An unforgivable failure by governments the world over in dealing with coronavirus has been that health workers have been inadequately protected from contagion.

Building hospitals

Perhaps the most compelling reason for naming the new coronavirus hospitals after Nightingale is because she ‘revolutionalised ideas of hospital construction‘. Her collected Notes on Hospitals, published in 1863, contained a detailed critique of defects in the construction and layouts of various hospitals in England, France, and Scotland and proposals that addressed these defects.

Nightingale’s ideas on hospital design meant that her advice was sought about the building of civic hospitals throughout the country and ‘upon the construction of military hospitals—whether general or attached to particular barracks—Miss Nightingale was consulted constantly and as a matter of course’. Given how much of her lifetime’s work was devoted to improving conditions for soldiers in the British Army, it is appropriate that military personnel have played such a key role in fitting out the coronavirus hospitals named in Nightingale´s honour.

Florence Nightingale devoted herself to evidence-based analysis of disease and health care ‘for the surer advance of medical knowledge and in the interests of good administration‘. Thanks in no small part to her efforts, our understanding of disease has improved enormously in the 200 years since Nightingale’s birth, as has our knowledge of how to provide effective care in safe environments. Even so, the corononavirus crisis has demonstrated the limits of our ability to combat new threats and that health and care systems still need strengthening to meet the demands being placed upon them.

____________________

About the Author

Andrew Street (@andrewdstreet) is Professor of Health Economics in the Department of Health Policy at the London School of Economics and Political Science.

LSE blog

George Letsas and Virginia Mantouvalou explain why any blanket restriction on NHS workers’ freedom of speech in the light of the pandemic is unlikely to pass the legal test of proportionality, or fit the image of a democracy that values transparency and accountability. 

‘I never thought I lived in a country where freedom of speech is discouraged’, wrote an NHS doctor to The Lancet. The journal receives many messages from front-line health workers who are being threatened with disciplinary action if they raise concerns about their safety at work. According to The Guardian, some NHS staff are altogether forbidden from speaking out publicly about the coronavirus. Intimidation techniques reportedly include threatening emails, monitoring of social media and disciplinary action.

This unprecedented restriction takes place against the background of secrecy surrounding the government’s response to the pandemic. There has so far been limited information both on the situation in hospitals and on the scientific evidence upon which the government acts. With Parliament in recess, the need for public scrutiny is even more pressing.

What is more, wars and pandemics have a substantial degree of a so-called ‘chilling effect’ on free speech: people typically rally behind their leaders and feel reluctant to voice their criticisms, adopting a stance of self-censorship. Even in the absence of any legal restrictions, a pandemic is therefore likely to result in suppression of information and decreased levels of accountability.

NHS workers’ freedom of expression

Governments’ response to the pandemic across Europe, and the rest of the world, has been accompanied by unprecedented restrictions on freedom of movement and assembly. Such restrictions are in principle justified in a context of a public health emergency. Yet they cannot go unchecked. The Council of Europe released guidance to its 47 Member States on how to respond to the pandemic while respecting human rights.

The right to free speech is protected in Article 10 of the European Convention on Human Rights (ECHR). In Handyside v UK, the European Court of Human Rights said that its ‘supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man’. In Lingens v Austria, the Court stressed that the press has a right ‘to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.’

NHS workers, like all workers, have a right to free speech. Restrictions on their rights through intimidation, monitoring of their social media, and disciplinary action may violate the ECHR directly, since the NHS is a public sector institution. Their right is protected strongly both when they speak to mainstream media and when using social media. It can be limited only if there is a legitimate aim (such as public safety and public health) and insofar as the limitation is proportionate. When applying the test of proportionality in assessing violations of the Convention, the European Court of Human Rights (ECtHR) has accepted that the special nature of some professions must be taken into account.

While certain restrictions on the right to free speech may legitimately be grounded on a duty of loyalty of the worker towards the employer, other restrictions are illegitimate. This is best exemplified by the strong protection of whistleblowers, in the UK Public Interest Disclosure Act 1998, the case law of the ECtHR and the Council of Europe Recommendation CM/Rec2014(7). The information that whistleblowers share has to reveal a threat or harm to the public interest. The recent guidance of the Council of Europe explicitly states that ‘the pandemic should not be used to silence whistleblowers’. Workers’ speech that reveals information on a harm to public interest is afforded maximum legal protection.

But what about NHS workers who simply share stories of the situation as they experience it, without seeking to make a public interest disclosure? The guidance accepts that free speech during the pandemic may be limited. It gives the following example: ‘exceptional circumstances may compel responsible journalists to refrain from disclosing government-held information intended for restricted use – such as, for example, information on future measures to implement a stricter isolation policy’. Here, a restriction on press freedom is justified because it prevents imminent harm. If journalists disclosed such information, then many people would try to make the most of the last few days or hours before the measures, spreading the virus and putting lives at risk.

Is the restriction proportionate to a legitimate aim? 

By contrast to the example above, there is no necessary link to harm in allowing NHS staff to share their day-to-day experiences. In fact, there is a lot to be gained: any shortcomings in the government’s approach (such as shortage of protective equipment) will come to light, putting it under pressure to correct them. It may also mobilise civil society to help the NHS effort. Finally and crucially, it will contribute towards holding the authorities into account. Pluralism is crucial not just for a democratic society, but also for a healthy society.

As there has been no official justification for why restricting the free speech of NHS staff is necessary, we can only hypothesise about the rationale. The Guardian article suggests that the aim is to ‘stop scaremongering when communications departments are overloaded with work at a busy time’. While this is legitimate, there is little reason to think that NHS staff can exaggerate the scale of the situation, not least because we know hospitals around the world are being tested to their limits. The issue countries face, including the UK, goes in the opposite direction: several people do not take the threat of the virus seriously enough, flouting the lockdown measures.

Another possible rationale is the protection of patients’ privacy. This is obviously legitimate, but NHS staff are well aware that they should not reveal patients’ identities. Sharing their accounts about their overall experience in the pandemic, however, does not necessarily involve revealing individual patients’ information.

But perhaps the real rationale behind gagging is this: if NHS workers start sharing their horrific experiences, this will undermine the public’s morale and trust in the NHS, and may even lead to social unrest. This rationale is very old, going back to the heavy restrictions on reporting during wartime.

Yet are not really at war and the analogy is problematic on many levels. It suggests that criticisms of the government’s approach are unpatriotic, because we all have to be united against an external threat. But the coronavirus is not a foreign enemy who will take advantage of any publicly available information about the shortcomings of the government. On the contrary, more information leads to increased scrutiny which, in turn, strengthens – rather than weakens – our ability to fight the epidemic.

As to the argument that sharing information about the situation in hospitals will undermine morale, it is deeply paternalistic. It assumes that the nation is not mature enough to understand that even the most advanced and prepared healthcare systems will be stretched by this horrible pandemic and that even the most professional and committed health workers will be challenged, physically and mentally, to treat all the patients. There is nothing unpatriotic about letting healthcare workers share their experiences, horrific as they might be, with the public, whose health they are desperately trying to protect.

It is legitimate, of course, to worry about the danger of civil unrest. If the government is perceived – in the eyes of the public – to be wholly incompetent to deal with the pandemic, we could conceivably be led to instances of unrest, violence or riots. But legal principles here are clear: there must be evidence of a clear and present danger before any drastic measures are taken to limit free speech and no such evidence exists at the moment. And the ban on some NHS staff speaking out appears to be indiscriminate: it does not only apply to images or reporting that may shock or outrage the public. It applies to any comment some NHS staff might want to make about their experiences in hospital. According to well-established human rights case law, indiscriminate and blanket restrictions on human rights are likely to be disproportionate, even if the aim is legitimate.

NHS workers need to be open about the challenges they face. Powerful testimonies help citizens understand the seriousness of the situation and emphasise the immeasurable contribution of NHS workers; they also help NHS staff themselves, many of whom are faced with a risk of post-traumatic stress disorder.

Even assuming that there is a legitimate aim, then, we are not convinced that gagging NHS workers passes the legal test of proportionality. The ban does not fit the image of a democracy that values freedom, transparency, and accountability. The chilling effect that the reported intimidations and threats of disciplinary action has on NHS workers’ speech has to be recognized and alarm us all. It raises questions about how open the government is to accountability and how much it values people’s lives.

____________________

LSE blog

Note: a longer version of the above was first published on the UK Labour Law Blog.

About the Authors

George Letsas is Professor of the Philosophy of Law at UCL.

Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL.