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How the media got the "Muslim headscarf ban" ruling wrong

It will be very hard for employers to legally ban women from wearing hijabs at work. But the far-right are already celebrating. 

In the 24 hours since the European Court of Justice (ECJ) published its judgments relating to Muslim women wearing a headscarf at work, much ink has already been spilled on the issue. This seems to be by many who have either not read the judgments or, at least, have not understood them.

On the one hand, the far-right across Europe is celebrating the end of Islamic clothing. On the other, religious rights advocates are mourning the end of freedom of religion in Europe. Both groups seem to base their opinions about the judgments on exaggerated media headlines about the EU’s court banning the Muslim headscarf, and both groups are highly likely wrong.

One fundamental point to be understood is the role of the European Court of Justice (ECJ) and the extent of its powers. The ECJ provides guidance to domestic courts on specific questions of EU law that arise within a case, but does not actually decide the case. In yesterday’s judgment of Achbita v G4S Secure Solutions NV, about a Muslim female receptionist who was dismissed for wearing a headscarf, the domestic court asked the ECJ a single, simple question: if an employer prohibits all employees from wearing religious symbols at work, is it direct discrimination under EU law if a Muslim woman is prevented from wearing a headscarf due to that policy?

The case therefore related just to attire in the workplace, and had no bearing on laws about what one can wear in public, or any place other than work. The issue before the court was not intrinsically a question of religious freedom, but one of employment rights.

The word "discrimination" in this context has the meaning we would commonly attribute to it – a particular individual or group being treated worse than others in a similar situation. The court’s judgment that there is no "direct discrimination" is unsurprising. When all religious symbols are banned, no one group can claim it is being discriminated against. Considering the legal concept of direct discrimination and the employer’s policy of banning all religious symbols, it is hard to see how the ECJ could have found that Ms Achbita was directly discriminated against.

The ECJ however went further and decided to also consider whether there could have been "indirect discrimination" in the case. This arises where a policy, although worded in a neutral way, in fact affects a certain individual or group more severely than others.

The court provides nuanced, practical guidance here, which seems to have escaped most of the commentators. The court ruled that employers must have a clear policy on the wearing of religious symbols, which must be consistently applied across the board. For instance, in a separate but related judgment, the ECJ made clear that a customer’s objection to a staff member’s religious clothing is not an acceptable reason for requiring the employee to remove it. 

However, the court could have also grappled with related judgments of the European Court of Human Rights (a completely separate court) and consider these as part of this judgment. It did not. 

This matters because the ECHR has already ruled on the issue of wearing religious symbols at work. In 2013, it held that British Airways should not have required a Christian check-in staff member to remove the cross she wore around her neck. On the other hand, an NHS trust could ban a geriatric nurse from wearing a cross as it could pose a health and safety risk.

Despite yesterday’s rulings, the ECHR judgments still apply to employers. There is no open invitation to ban religion in the workplace. Any employer taking both courts' rulings into account would have to introduce a blanket ban on all religious symbols and clothing, including Sikh turbans, Muslim headscarves, Christian crucifixes, the Star of David etc. Employers may therefore feel that a blanket ban is not realistic or practical. The rulings are therefore unlikely to lead to any overnight, or indeed long-term, change in company policies on what employees wear.

For all the legal detail, it is nevertheless concerning if the message broadcast to the wider world is that employers may now discriminate on the basis of religion. Muslim women are already among the groups with the lowest employment rates, and anything that discourages them further from taking up employment is to be deprecated. As Ms. Achbita demonstrated, her faith was much more precious to her than her job. 

Integration, whether in society or the workplace, is about people working together towards a common goal, however different they are. Social integration can never be achieved if our plan for doing so is to force everyone to first believe, think, behave and dress the same way. People work best when they are allowed to be themselves in the workplace, and this means at least tolerating their diversity, if not encouraging it. Employers would be well-advised to remember this when they consider imposing restrictions on their staff, even where allowed to do so by law.

Shoaib M Khan is a human rights lawyer and media commentator. He tweets at @ShoaibMKhan.

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We're racing towards another private debt crisis - so why did no one see it coming?

The Office for Budget Responsibility failed to foresee the rise in household debt. 

This is a call for a public inquiry on the current situation regarding private debt.

For almost a decade now, since 2007, we have been living a lie. And that lie is preparing to wreak havoc on our economy. If we do not create some kind of impartial forum to discuss what is actually happening, the results might well prove disastrous. 

The lie I am referring to is the idea that the financial crisis of 2008, and subsequent “Great Recession,” were caused by profligate government spending and subsequent public debt. The exact opposite is in fact the case. The crash happened because of dangerously high levels of private debt (a mortgage crisis specifically). And - this is the part we are not supposed to talk about—there is an inverse relation between public and private debt levels.

If the public sector reduces its debt, overall private sector debt goes up. That's what happened in the years leading up to 2008. Now austerity is making it happening again. And if we don't do something about it, the results will, inevitably, be another catastrophe.

The winners and losers of debt

These graphs show the relationship between public and private debt. They are both forecasts from the Office for Budget Responsibility, produced in 2015 and 2017. 

This is what the OBR was projecting what would happen around now back in 2015:

This year the OBR completely changed its forecast. This is how it now projects things are likely to turn out:

First, notice how both diagrams are symmetrical. What happens on top (that part of the economy that is in surplus) precisely mirrors what happens in the bottom (that part of the economy that is in deficit). This is called an “accounting identity.”

As in any ledger sheet, credits and debits have to match. The easiest way to understand this is to imagine there are just two actors, government, and the private sector. If the government borrows £100, and spends it, then the government has a debt of £100. But by spending, it has injected £100 more pounds into the private economy. In other words, -£100 for the government, +£100 for everyone else in the diagram. 

Similarly, if the government taxes someone for £100 , then the government is £100 richer but there’s £100 subtracted from the private economy (+£100 for government, -£100 for everybody else on the diagram).

So what implications does this kind of bookkeeping have for the overall economy? It means that if the government goes into surplus, then everyone else has to go into debt.

We tend to think of money as if it is a bunch of poker chips already lying around, but that’s not how it really works. Money has to be created. And money is created when banks make loans. Either the government borrows money and injects it into the economy, or private citizens borrow money from banks. Those banks don’t take the money from people’s savings or anywhere else, they just make it up. Anyone can write an IOU. But only banks are allowed to issue IOUs that the government will accept in payment for taxes. (In other words, there actually is a magic money tree. But only banks are allowed to use it.)

There are other factors. The UK has a huge trade deficit (blue), and that means the government (yellow) also has to run a deficit (print money, or more accurately, get banks to do it) to inject into the economy to pay for all those Chinese trainers, American iPads, and German cars. The total amount of money can also fluctuate. But the real point here is, the less the government is in debt, the more everyone else must be. Austerity measures will necessarily lead to rising levels of private debt. And this is exactly what has happened.

Now, if this seems to have very little to do with the way politicians talk about such matters, there's a simple reason: most politicians don’t actually know any of this. A recent survey showed 90 per cent of MPs don't even understand where money comes from (they think it's issued by the Royal Mint). In reality, debt is money. If no one owed anyone anything at all there would be no money and the economy would grind to a halt.

But of course debt has to be owed to someone. These charts show who owes what to whom.

The crisis in private debt

Bearing all this in mind, let's look at those diagrams again - keeping our eye particularly on the dark blue that represents household debt. In the first, 2015 version, the OBR duly noted that there was a substantial build-up of household debt in the years leading up to the crash of 2008. This is significant because it was the first time in British history that total household debts were higher than total household savings, and therefore the household sector itself was in deficit territory. (Corporations, at the same time, were raking in enormous profits.) But it also predicted this wouldn't happen again.

True, the OBR observed, austerity and the reduction of government deficits meant private debt levels would have to go up. However, the OBR economists insisted this wouldn't be a problem because the burden would fall not on households but on corporations. Business-friendly Tory policies would, they insisted, inspire a boom in corporate expansion, which would mean frenzied corporate borrowing (that huge red bulge below the line in the first diagram, which was supposed to eventually replace government deficits entirely). Ordinary households would have little or nothing to worry about.

This was total fantasy. No such frenzied boom took place.

In the second diagram, two years later, the OBR is forced to acknowledge this. Corporations are just raking in the profits and sitting on them. The household sector, on the other hand, is a rolling catastrophe. Austerity has meant falling wages, less government spending on social services (or anything else), and higher de facto taxes. This puts the squeeze on household budgets and people are forced to borrow. As a result, not only are households in overall deficit for the second time in British history, the situation is actually worse than it was in the years leading up to 2008.

And remember: it was a mortgage crisis that set off the 2008 crash, which almost destroyed the world economy and plunged millions into penury. Not a crisis in public debt. A crisis in private debt.

An inquiry

In 2015, around the time the original OBR predictions came out, I wrote an essay in the Guardian predicting that austerity and budget-balancing would create a disastrous crisis in private debt. Now it's so clearly, unmistakably, happening that even the OBR cannot deny it.

I believe the time has come for there be a public investigation - a formal public inquiry, in fact - into how this could be allowed to happen. After the 2008 crash, at least the economists in Treasury and the Bank of England could plausibly claim they hadn't completely understood the relation between private debt and financial instability. Now they simply have no excuse.

What on earth is an institution called the “Office for Budget Responsibility” credulously imagining corporate borrowing binges in order to suggest the government will balance the budget to no ill effects? How responsible is that? Even the second chart is extremely odd. Up to 2017, the top and bottom of the diagram are exact mirrors of one another, as they ought to be. However, in the projected future after 2017, the section below the line is much smaller than the section above, apparently seriously understating the amount both of future government, and future private, debt. In other words, the numbers don't add up.

The OBR told the New Statesman ​that it was not aware of any errors in its 2015 forecast for corporate sector net lending, and that the forecast was based on the available data. It said the forecast for business investment has been revised down because of the uncertainty created by Brexit. 

Still, if the “Office of Budget Responsibility” was true to its name, it should be sounding off the alarm bells right about now. So far all we've got is one mention of private debt and a mild warning about the rise of personal debt from the Bank of England, which did not however connect the problem to austerity, and one fairly strong statement from a maverick columnist in the Daily Mail. Otherwise, silence. 

The only plausible explanation is that institutions like the Treasury, OBR, and to a degree as well the Bank of England can't, by definition, warn against the dangers of austerity, however alarming the situation, because they have been set up the way they have in order to justify austerity. It's important to emphasise that most professional economists have never supported Conservative policies in this regard. The policy was adopted because it was convenient to politicians; institutions were set up in order to support it; economists were hired in order to come up with arguments for austerity, rather than to judge whether it would be a good idea. At present, this situation has led us to the brink of disaster.

The last time there was a financial crash, the Queen famously asked: why was no one able to foresee this? We now have the tools. Perhaps the most important task for a public inquiry will be to finally ask: what is the real purpose of the institutions that are supposed to foresee such matters, to what degree have they been politicised, and what would it take to turn them back into institutions that can at least inform us if we're staring into the lights of an oncoming train?