Sleepwalking into a police state

This post will start with a report on a prima-facie parochial issue: whether to record student attendance at classes and seminars in British universities.  It ends with an issue that ought to be of general concern, in the UK and elsewhere: the hammering of yet another nail into freedom’s coffin in the UK, as the state requires universities and those that work in them to act as informers for the immigration authorities.

Recording student attendance – the educational issues

The small corner of the academic universe where I work, the European Institute (EI) at the London School of Economics and Political Science, uses an LSE-wide software programme called LSE for you (no doubt meant to be spelled LSE4u by the texting generations).  The EI uses it for graduate student course choice registration and the assignment of students to seminars.  In return for the use of this convenient facility, we are required to record student performance (marks in essays etc.) using the LSE for you (LFY) vehicle.

A short while ago, faculty in the EI were reminded that they also had to record student attendance at seminars, using the same centralised LFY programme.  For each student, weekly attendance in the seminar had to be registered as P (present), A (absent ) or R (absent with reason). Student attendance at lectures (often open to the wider (LSE) community) is not monitored, but attendance (and preferably also the active participation ) by students in the smaller (ideally no more than 15 students) seminars or classes that accompany the lectures, is mandatory.

The discussion started as a discussion about educational issues -effective teaching and student well-being.  I oppose registering student attendance, because the last time I took attendance records was when I volunteered in a local kindergarten in New Haven, Connecticut in the early 1970s. I view students as adults who are responsible for their own actions, and have the mental and emotional maturity to decide whether attendance at seminars or classes represents an effective use of their time.  This argument may not be wholly convincing for undergraduates, typically aged between 18 and 21. In the eyes of many, the true age of majority is 21, whatever the law may say.  The EI, however, is a graduate institute, which teaches only post-graduate students, typically aged 21 or over.  I don’t believe universities ought to have in loco parentis status vis-à-vis graduate students.  At some point the hand-holding has to stop.  That too is part of what education means.

Against this, there is the argument that monitoring student presence in the weekly term-time seminars/classes provides ‘insurance’ against a range of problems that students may encounter.  Students come to the LSE from all over the country and from all over the world.  London is a wonderful but harsh place to live.  For a whole range of reasons, students may be ill-prepared to manage their time and their lives effectively.  Keeping tabs on them by taking attendance in seminars prevents students ‘getting lost’ or ‘falling through the cracks’.  It will help faculty and the university at large to spot potential problems (educational, emotional, personal or financial) earlier and to intervene sooner and therefore more effectively.  Taking attendance is a potentially useful instrument for improving our educational effectiveness and capacity to provide pastoral care for our students.

Then there is the argument that students have become much more litigious than they used to be.  Given the fees they are paying if they come from outside the EU, this development is not surprising.  It is no longer unusual for students to sue, or to threaten with a law suit, when they are disappointed with the quality of the education they are receiving, and especially if they are disappointed with the results and with the degree they obtain at the end of their studies.

Keeping attendance records is a useful posterior-covering device for universities facing the prospect of being sued by disgruntled students.  The institution will be able to demonstrate that the student either was physically present on a number of occasions, or that absence notes were issued, attempts to contact the absent student were made etc. – a useful first line of defence when confronted with the threat or reality of a law suit.

Recording student attendance – faculty as informers for the state

It was a good discussion, mainly via e-mail, of academic educational matters.  Then, in the midst of this discussion, an e-mail message containing the following statement arrived: “I gather from the emails below that staff don’t object to recording essay marks via LFY, but that the problem lies with recording attendance. With the introduction of the points based visa system in Spring next year, LSE is obliged to inform the Home Office of any students who are not attending lectures/seminars. One way to tell if students are attending is via the registers. As an Institute, it is our responsibility to check that students are around.  …”.

It took me a while to pick myself off the floor.  Surely, it could not be the case that faculty were required to act as spies and informers for the Home Office? I soon discovered that this was exactly what was required.  There is in fact a campaign against it, organised by the National Critical Lawyers Group, which has a petition against the application of the Points-Based System (PBS) rules on the Downing Street 10 E-petitions website – an excellent facility (go there and sign up!).  The blurb accompanying the petition states:

“The new rules for overseas students and staff threaten university autonomy and breach human rights legislation. These rules would require Universities to report to the Border Agency any absences from lectures and seminars or any failure to submit any assessment on time. In other words, the University is being asked to act as an Immigration Officer to the students. These requirements go far beyond the present monitoring of student progress systems in Universities which has as its purpose assisting students to reach their full potential It is hard to justify such detailed monitoring of overseas students. Surely the Border Agency just needs to know students have registered and are at the University. This police-like surveillance is not the function of universities and alters the educational relationship between students and their teachers in a very harmful manner. University staff are there to help the students develop intellectually and not to be a means of sanctioning them. Trust between students and staff is essential to the relationship. They represent a breach of Articles 8 and Article 3 of the European Convention on Human Rights and the Human Rights Act 1998.  Ian Grigg-Spall”.

Some history

The introduction of the PBS for visas has been under discussion for several years. Under the Points Based System for UK immigration, all businesses, colleges and other organisations that want to bring non-EEA nationals to live and work or study in the UK must apply for a sponsorship licence. A licence will permit the sponsor to award sponsorship certificates to the migrants it wants to bring to the UK, allowing them to apply for UK entry clearance. Every organisation in the UK that wishes to bring in people from overseas has to follow these rules.  The ‘points’ in the Points Based System, refers to the allocation of points to specifical skills or other desirable characteristics that would-be immigrants may have.  More points bump you up in the queue for admission to the Kingdom.

The PBS impacts on universities mainly in two areas: recruitment of staff (Tier 4);  and recruitment of students (Tier 5).  But these are only two ‘tiers’ of five which will be covered by the new arrangements;  and they will cover all organisations and employers in the UK, not just universities.  Universities will be the largest users in terms of volume, but the actual number of universities is small in relation to the many thousands of organisations which will need to adopt the new rules.  In what follows, I will only deal with one part of the Tier 5 provisions – the monitoring of student attendance.

Most of what is required to support the new PBS rules has been achieved by changes to the Immigration Rules. There is legislation that covers certain aspects (there have been about six immigration acts since 1997) of the PBS and other aspects are covered by specific rules changes that are pushed through via secondary legislation. The overall legislation was passed some time ago but the secondary legislation is enacted as and when specific parts of the system are introduced.

As I understand it, both the LSE and the higher education sector as a whole have done quite a bit of lobbying to try to soften the impact of the new rules and to shape them more closely to the way universities work.  The Director of the School, Howard Davies, has written to ministers;  the School has made a submission to the Home Office Select Committee;  the LSE has also lobbied MPs on other occasions. Last week, a Peer did try to stop Tier 5, but the vote went against him.  Given the Government’s majority (and the spineless voting-fodder nature of most Labour MPs) and given the Conservative opposition’s views on immigration (‘when in doubt, keep them out’), further attempts to defeat the application of the PBS to university students are unlikely to be successful.

The universities have had some successes, including in delaying implementation of Tier 4, and in changing some features from the very crude model the Home Office initially put forward.  But there are still many uncertainties and areas to be finalised, notably in the area of monitoring attendance.

As regards the requirement to monitor attendance,  the Home Office initially proposed that institutions should record and report all cases where a visa-holder was “absent without permission” for ten days.  Under considerable pressure from the higher education sector, the Home Office have now agreed that the Universities should report to the Home Office when students miss “ten expected interactions”,  and they haven’t specified a set period within which the interactions have to take place.  Nobody quite knows what this means in practical terms, and there are still discussions going on between universities and between the higher education sector and the Home Office as to what will be expected of the universities. The ten “expected interactions” are unlikely to be monotored on the basis of class attendance registers alone.

An aside on immigration restrictions of any and all kinds

My objections to the PBS derive in part from my belief that nations ought to be ‘open clubs’.  That means that anyone wishing to join the club who is willing to abide by the rules of the club should be allowed to join, and that anyone unwilling to abide by these rules could be expelled (subject to the availability of a safe dumping ground – this is not a defense of extraordinary renditions…).  These rules can include fair arrangements for making the material benefits enjoyed by any member of the club (old and new) commensurate with their contributions to the club.  The rules of any club are also constrained to respect a universal code of good conduct like the Universal Declaration of Human Rights.  I specifically attach no significance to such factors as ancestry or descent (‘blood’) or place of birth (‘soil’): neither Blut nor Boden for me.  Please note that the preceding is a normative statement (about what ought to be), not a positive, descriptive or historical statement about what is and how it became what it is.

From this perspective, virtually all existing immigration laws, rules and regulations, including the PBS of the UK and similar arrangements in other countries, are immoral and ethically unacceptable.  The PBS-type arrangements carry the further stigma of depriving poor and middle-income countries of their most skilled workers.

I am aware that my views on the nation state are shared by no more than a handful of universalist fanatics.  So no more will be said about it here.  The proposition that the PBS should not be applied to universities can be underwritten also by those who accept the moral validity of national property rights of the kind that allow the inhabitants of some geographic area to treat this area (‘country’) as their home, rather than as an open club, and who  accept the right, in principle, of current residents (citizens) to exclude outsiders without the need to provide reasons or excuses.  Even regular nationalists and patriots should object to the ethical swamp that is the PBS, scheduled to start operating in British universities in 2009.

Why can the government and the state not be trusted with certain kinds of information?

(1) They lose it

If I were the recipient of every laptop filled with confidential information left on trains, in taxis or on park benches by those entrusted with maintaining data confidentiality, I would have the largest second-hand laptop franchise in the world.

There really is no such thing as confidential information.  This is one reason why I oppose even universities collecting information on student attendance.  If tomorrow the police were to turn up in Houghton Street demanding the information the LSE has in its files, who will deny them access?  The Serjeant at Arms of the House of Commons, if we cannot get the Speaker of the House of Commons himself?

In my own immediate family, there have been examples of confidential medical information being leaked to parties that had no business accessing this information.  The first time was in the US, and the leaky institution was a university Health Center; the second time was in the UK, and the institution concerned was an NHS hospital.

(2) They abuse it

Governments abuse information always and everywhere.  My prediction that any information entrusted to the state can and will be abused is based on a rich historical record, spanning all countries and all of history.  Who does not remember Richard Nixon going after his political enemies using the US tax authorities and their unique (confidential) data base?

Government access to more and more information greatly facilitates the gradual slippage towards a ‘guilty unless proven innocent’ legal system in the UK.  The European Court of Human Rights (for the Euro-ignorant – this is not an EU institution, but instead an institution associated with the Council of Europe) recently ruled that the law permitting  the police in England and Wales to keep, for an indefinite period, the finger prints and DNA samples of persons not convicted of a crime (and a-fortiori permitting these data to be kept on a criminal register!) breached article eight of the Human Rights Convention, covering the right to respect for private and family life.

The repeated attempts by the current UK government to introduce a mandatory ID card – preferably one that stores a host of personal details other than name, rank and serial number – should be resisted.  “Ausweis, bitte”, does not sound good, even in English.

The fact that throughout history and in the UK today information is lost and/or abused by the government means that the government should be prevented from obtaining information it would be useful for the government to have if it were competent and benevolent, and could be trusted.

Because the state can never be trusted fully or unconditionally, and because it can become incompetent and/or malevolent – often unexpectedly and at short notice – I have in the past been moved to micro acts of civil disobedience.  This involved no more than not providing all the requested/required information in the periodic censuses I have had to fill in, both in the USA and in the UK. The last time I returned a deliberately incomplete census was in the UK in 2001.  I wrote about this in one of my first blogs on June 30, 2007, before the blog moved to FT.com. It is titled   ‘Our Right for the Government Not to Know’.

The road to serfdom

Perversion of the intent of the law

In the UK, the powers granted to the government to fight terrorism have been perverted and abused.  These powers were used to keep an 82-year-old Labour Party Conference heckler, Walter Wolfgang, from re-entering the conference after his ejection. They were also used to arrest two women who stood at the Cenotaph and read out the names of civilians killed in the Iraq war.

The UK government froze the UK assets of the Icelandic bank Landsbanki under the 2001 Anti-Terrorism, Crime and Security Act passed after the September 11, 2001 terrorist attacks in the USA. This was an outrageous and deeply worrying perversion of the intent of the Act. The UK government may have had a financial dispute with the Icelandic government about who should cough up for deposit protection in case of bank failure, but not even the most paranoid denizen of Whitehall would be able to find a link between Icesave and Landsbanki and terrorism.

Given this record, would one be surprised if those ticking the boxes for the PBS reporting exercise were told to complete an additional entry for students from that well-known terrorist-breeding nation Iceland?  Will we see requests for additional information on students of middle-eastern or Indian sub-continental appearance?  On Islamic students?  On students wearing the hijab?  On bearded students? Or perhaps just on bearded students wearing the hijab?

Police officers from a counter-terrorist unit arrested the conservative MP and spokesman on immigration matters Damian Green, and searched his home and his office in the House of Commons.  The ‘terrorist conspiracy’ they were investigating concerned Home Office leaks, none of which involved national security issues.  The offence that provided the fig-leaf for his arrest is a common law license to harass the opposition, to prevent government embarrassment and to undermine the public’s right to know: “conspiring to commit misconduct in a public office” and “aiding and abetting, counselling or procuring misconduct in a public office” .

The Regulation of Investigatory Powers Act was designed to grant the power to intercept/spy on e-mails and telephone conversations just to the police and the security services.  It was, however, extended to local authorities, who now use it to snoop on suspected abuse of welfare benefits, violations of school catchment areas, dog fouling and littering.  This fits seamlessly with the sad observation that the UK has more surveillance cameras and other CCTV-type equipment (private and public) per person and per square mile than any country in the world.  Big brother is definitely watching you.

The undermining of habeas corpus

My relief at the failure of the government to extend to 42 days the period for which persons suspected of terrorist acts (I assume this now includes all Icelanders) can be held in detention without being charged, is  severely qualified by the realisation that 28 days detention without charge is the new status quo.  Even 28 days represents an unacceptable encroachment on habeas corpus – the right of the accused to face his or her accuser and to have his day in court.  Forty eight hours should be all this is required for putting out fires.  Don’t forget, that the Labour government in 2005 tried to extend the period of detention without charge for terrorist suspects to 90 days.  Too many members of the current government have learnt all they know about constitutional rights and fundamental human rights at the Guantanamo Bay School of Law.

The right to remain silent

The right not to incriminate yourself, or the right to silence/to remain silent no longer exists in any meaningful sense in the UK.

The “right to silence” is an essential legal protection given to people undergoing police interrogation or trial. The right is recognised in many of the world’s legal systems. In the UK, it was first codified in the Judges’ Rules in 1912. In 1996, the European Court of Human Rights stated: “the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 [of the European Convention on Human Rights].”

The Terrorism Act 2000 undermined this right, and indeed appears to have abolished it altogether. Schedule 7 states that “a person who is questioned under paragraph 2 or 3 must give the examining officer any information in his possession which the officer requests.” The purpose of this obligation to provide information is supposed to be “determining whether he appears to be a person falling within section 40(1)(b).”, that is, whether he “has been concerned in the commission, preparation or instigation of acts of terrorism.” But Article 2.4. of this Schedule says that “an examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).”  Duh?!

You have to provide all the information the interrogating police officer requests in order for him to determine whether you are an actual or potential terrorist.  But the interrogating officer can demand that information regardless of whether he has any grounds for suspecting you of being an actual or suspected terrorist!  Instead he could suspect me of murder, rape, robbery, double parking or ‘conspiring to commit misconduct in a public office’.  This is mad.  Joseph Goebbels would have been proud of this fantastic pseudo-logical piece of legal gobbledygook.  The law is not an ass but a poisonous viper in this case.  This Catch-22 construction castrates the right to silence.

The ‘examining officer’ also has the power to “search anything which [the person] has with him, or which belongs to him”, and to hold him for up to 9 hours for the purpose of “examination”. Damian Green was held by the police for 9 hours.  Just a coincidence.

The duty of civil disobedience when the law is unjust

What is to be done?  First-best would be to get rid of the Points-Based visa system.  Second-best would be to get an exemption from the law for the universities.  Third-best would be for the universities, severally or jointly, to decide that they will not comply with the legal requirement to provide these data to the Home Office or any other government agency.

Regrettably, institutions like universities are likely to feel compelled to comply.  They are vulnerable to financial and other sanctions from the state.  This is true today as it was in the 1930s in Germany and under communist rule in Central and Eastern Europe.  Institutions are therefore almost always cowards.  There are many lapdog state churches for each bekennende Kirche.  An isolated bekennende Kirche is also likely to be crushed by the power of government and the state.  Only a collective ‘no’ from the world of higher education can stare down the government on this issue.  The Fourth-best would be for individual faculty members to refuse to comply with the law.

If the fourth-best option is the only one available, it is the one I shall choose.  As regards the practical side of this, effective sabotage of the law is not achieved, as I understand it, by simply refusing to take attendance.  This would leave all non-EEA students open to harassment by the authorities. The way to subvert the law without putting students at risk is to record all students as present, even when they are absent or absent with reason.  It may be enough to record students that are absent as ‘absent with reason’ – I intend to find out more about this. But under no circumstances will I, in my capacity as a faculty member, collect and pass on information regarding student attendance that can be used by the government to harass – even to deport – students or others living in this country.

It is unfortunate that one may be forced to lie, indeed to lie ‘in writing’, if one is to do one’s job – one’s duty – as an educator and teacher.  But this is preferable to turning informer for the government.  As that great conservative, Barry Goldwater said: Extremism in the defense of liberty is no vice. . .. Moderation in the pursuit of justice is no virtue.

When morality and justice are increasingly at odds with the law, it is time to challenge and change the law and the government that created it.

Maverecon: Willem Buiter

Willem Buiter's blog ran until December 2009. This blog is no longer active but it remains open as an archive.

Professor of European Political Economy, London School of Economics and Political Science; former chief economist of the EBRD, former external member of the MPC; adviser to international organisations, governments, central banks and private financial institutions.

Willem Buiter's website

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