10 Questions for Nationalists

If the SNP can adequately answer these I’ll sign up tomorrow:

  1. We know you’re anti-austerity, but you still prefer it to raising taxes, right? You may not have the power to curb austerity through borrowing, but you do through taxes – which you steadfastly refuse to do.
  2. How do you propose to redistribute wealth from some of the world’s richest people in London to our poorest people in Glasgow by throwing up sovereign boundaries between them? Does independence really make the world a more equal place? Or are you only concerned about equality within our borders?
  3. You don’t really want full fiscal autonomy, do you? I mean, even those of us who are opposed to independence accept that it’s not entirely without any merit. But FFA is all of the drawbacks of independence without any of the advantages.
  4. What have you actually done with the powers the Scottish Parliament already has to redistribute wealth from richer people to poorer people? I can think of plenty of examples to the contrary – the Council Tax freeze springs to mind.
  5. You know perfectly well that there’s no actual way in the British Constitution to make anything, permanent, right? You also surely know that if the UK ever did try to scrap Holyrood, Scotland would be independent inside a month? Isn’t this the sort of “scaremongering” that you accused unionists of?
  6. You accuse others of “breaking promises” to the people of Scotland. Whatever happened to scrapping Council Tax and paying off my student debt?
  7. You do know that a LOT of your supporters are fundamentally horrible, nasty people, right? I know, I know – there are unpleasant people like that on both sides, but there’s WAY more on yours and you do relatively little to stamp it out.
  8. You really did want the Tories to win, right? Not because you like them, but because you know perfectly well that a Tory PM is a far more frightening bogey man than a Labour one.
  9. You do accept that Alex Salmond is a proven liar and at least a bit of a sexist? Contrary to Alex Salmond’s attempted excuse, it is NOT a “Scottish saying”.
  10. Independence in Europe – bit of a logical inconsistency, no?

The Problem of Perception for Scottish Labour

The Scottish Labour Party has an image problem. That is not to say that the root of the problem is our image. At this moment in time I cannot begin to count the various problems that the Scottish Labour Party has, but one of them is undoubtedly our image – how we are perceived by the people we want to vote for us.

Perceptions are difficult to manage in politics, because they can often have little grounding in reality. This, you might think, makes it easy to change people’s perceptions, by simply directing their attention towards reality. However, in politics, perceptions are far more difficult to change than reality.

The perception that we are fiscally profligate hurt Labour badly in England. No matter what the two Eds said or did to demonstrate their prudence, their long association with Gordon Brown’s Treasury meant that they were perceived by the electorate as untrustworthy with the public finances.

In Scotland, we are perceived rather differently. Lord Ashcroft held a focus group in Paisley, and he discerned three problems perceived by voters. The first, is that we are conservative – and virtually indistinguishable from the Tories. The second, is that we are a “branch office” of the Labour Party in London. The third, is that we “betrayed” our supporters by joining with the Conservatives to promote a homogenous establishment defence of the Union.

These perceptions are all, in part, rooted in reality. However, changing the reality does not necessarily change the perception. Once a perception has been formed in people’s minds about a party it is extremely difficult to exculpate it. We have witnessed the difficulties the Conservatives have had dispelling the ghost of Thatcherism. Labour may find it difficult to shake the perceptions that have formed in the public’s minds. Those trained in philosophy or jurisprudence will be familiar with the difficulties in proving a negative. In this instance, that we are not what they perceive us to be.

A new approach to communications

We are bad communicators. This is not to criticise the staff who work in communications. The fault is a systematic one.

Fundamentally, communications staff ought not be necessary. Communication is a core-skill of the politician. However, communication must not be one-way. While, of course, it is a tremendous advantage to have the oratorical skills of Michael Foot or a caustic wit like William Hague – but one of the key failings of these great communicators was that they were transmitters, rather than receivers. Over the years I have known many Labour politicians who are brilliantly attuned to the public mood, but they have been sidelined either through our recent electoral misfortunes, or a succession of leaders who have failed to appreciate the value of such a skill.

As a tarnished brand, and an unpopular product, the party should look to business practices for solutions to our present woes. In recent years, the Scottish Labour Party’s approach to political communication has been more akin to 1950s methods of selling products than modern methods of marketing. Prior to the development of more consumer-oriented marketing techniques, the predominant approach to driving profits was selling and promoting goods and services – the “hard sell” –  rather than determining new customer desires. In effect, selling people something they don’t really want to buy. By contrast, consumer-oriented marketing methods feedback from consumers and attempt to create a product that customers actually want to buy.

It was this approach to political marketing that the late Philip, later Lord, Gould brought to the modernisation of the Labour Party in the late 80s and 90s. It is this responsiveness to public mood that has been sorely lacking in the Scottish Labour Party since the inception of devolution.

For too long we have relied upon opinion polling and canvass returns to gauge the public mood. These have consistently let us down in recent years. In 2011 we fought an offensive election – targeting gains like Livingston and Stirling – when, we should have been defending seats like Shettleston and Cunninghame South. Up until a few months ago, Labour’s key-seat list in Scotland comprised of Argyll and Bute; Dumfriesshire, Clydesdale, and Tweeddale; Dundee East; East Dunbartonshire; and Edinburgh West – our average share in those five seats was less than 15%. These seats were targeted because of both local polling and uniform national swings.

We saw in this election the dangers of relying on opinion polling (and those of us who are political punters paid the price!) Outside of an election cycle there is a tendency for voters to simply provide the answer that they always do – which would explain how Labour’s massive opinion poll leads in the run up to the 2011 election translated into a massive defeat. We failed to detect that “our voters” are no longer “our voters” until it was too late to stem the flow away from us.

Labour needs to make better use of focus groups and modern marketing techniques in order to adequately craft our message to suit the public mood. This might sound frightfully Mandelsonian to some, but it does not mean simply telling the people what they want to hear. In many areas of policy, the public mood appears to be far closer to our core values than we are. If Labour values are what the public wants, then it is utterly incredulous that we appear hesitant to embody them.

I do not believe that our product is fundamentally flawed, we just need to stop trying to flog the people’s last year’s model.

A new visual identity

Aschroft’s focus group discerned that the Scottish Labour Party is perceived as being a mere ‘branch office’ of the Labour Party in London. When even our leader shares that view, there’s bound to be a lot of truth in it. Jim Murphy, at least, recognised that that is a perception that needs to change, and made some attempts to dispel it.

Visual identity is hugely important. Tarnished brands frequently seek to change perceptions of themselves by updating their visual identity. McDonald’s responded to the perception of tackiness by ditching red and yellow in favour of earth tones in their restaurants. BP sought to bolster their environmental credentials by updating their logo. David Cameron did nearly the exact same thing when he changed the Conservative Party’s branding in 2006. And Peter Mandelson, too, sought to renew Labour’s brand by ditching the red flag in favour of the rose in the late 80s.

As a tarnished brand, the party’s visual identity needs to be renewed – urgently – to distinguish ourselves from the failings of the past, as well as the UK Labour Party of which we are perceived as being a branch.

This involves more than merely throwing a few saltires around the place. Name, shape, and colour should all be up for debate.

Of particular focus should be the name. It is arguable that the name ‘Scottish Labour’ evinces a sense that we are the Scottish bit of the Labour Party, rather than being the Labour Party of Scotland. The starting point for any rebrand ought to be the question ‘what would we call ourselves if we were starting from scratch?’ The answer, I suspect, would be ‘Labour’.

Raab Amendment Entirely Consistent with Community Law

Dominic Raab’s proposed amendment to the Immigration Bill seeks to substantially restrict the ability of convicted criminals to rely upon their family ties in the UK to avoid deportation. While this amendment has received considerable support from across the house, there have been numerous suggestions that such an amendment breaches the ECHR – which it possibly does – as well as breaching the EU treaties – which it certainly does not.

The UK Borders Act 2007 provides for the automatic deportation of  “foreign criminals” (that is to say,  anyone who is not a British citizen who is: convicted in the United Kingdom of an offence and sentenced to at least 12 months in prison, or;  convicted of an offence prescribed by the Secretary of State under 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 for which they are sentenced to a period of imprisonment). This automatic deportation is subject to a number of exceptions, contained within s33.

The first exception is where such a deportation would breach “a person’s Convention rights”. Dominic Raab’s amendment replaces the words “Convention rights” with “rights under Articles 2 or 3 of the Convention.” Article 2 provides for the right to life, while Article 3 provides for freedom from torture and inhumane punishment. The clear intention of this substitution is to remove Article 8 – which provides for the right to respect for private and family life – from this exemption. Raab’s amendment, however, mitigates this somewhat by providing an exception where

“removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would cause such manifest and overwhelming harm to his children”.

It is important to note that the exemption applies where such a deportation breach “a person’s” rights, and not necessarily the rights of the foreign criminal. In most cases, the substantive question at issue is not whether such a deportation would breach the foreign criminal’s rights, but rather whether such a deportation would breach the rights of a person who is dependant on that foreign criminal. While it is arguable that such a deportation would not, in fact, be a breach of Article 8 – it is clear that the intention of this set of amendments is to mandate for the automatic deportation of foreign criminals even where it would be a breach of Article 8. I am not a Human Rights lawyer, however, the Diceyan in me sees little that is legally (as opposed to politically) problematic in legislating to this effect. Of greater concern, from my perspective, is that argument that this amendments breaches EU Law.

At yesterday’s Questions to the Prime Minister, Mark Lazarowicz derided David Cameron’s backbenchers for supporting “an amendment to the Immigration Bill which everyone knows to be totally incompatible with the European treaties”. Notwithstanding the fact that the amendment is supported by dozens of Labour MPs, Lazarowicz’ claim that the amendment breaches EU Law is utterly without foundation.

The Raab amendment leaves intact the exemption contained within s33(4) of the Act which prohibits deportation where it would “breach rights of the foreign criminal under the Community treaties.” It is worthwhile noting that the Community Law exemption only appears to apply to the rights of “the foreign criminal” and not “a person” – suggesting that the Community rights of dependents of the foreign criminal shall not have any bearing. However, the supremacy of Community Law still applies, and the deportation of a foreign criminal would still be subject to the rights under Community Law of any EU citizen who was dependent upon the foreign criminal.

Following the decision in Zambrano, the basic rule of Community Law is that a state cannot deport a non-EU citizen where that deportation would result in an EU citizen who was dependent upon that non-EU citizen being forced to leave the territory of the EU. It therefore requires a degree of actual dependancy upon the non-EU citizen that does beyond a mere familial connection. The narrowness of the category of persons to whom this rule applies has been made clear in subsequent decisions in McCarthy and Dereci.

A situation of the sort which the Raab amendment envisages was considered by the< High Court of Ireland last year: Smith v. Minister for Justice [2012] IEHC 113. Mr Smith was a Nigerian national who arrived in Ireland with his partner in January 2002. Having been refused asylum, Mrs Smith gave birth in Ireland a few days later. Several months later, Mr Smith travelled to the United Kingdom, where he was subsequently arrested for, charged with, and convicted of various drug trafficking offences, and sentenced to seven years in prison. In 2005, Mr Smith was deported from the UK to Nigeria.

During the years that followed, Mrs Smith was granted a right of residency parasitic upon their son, an Irish citizen. In June 2006, Mrs Smith gives birth to a second child who is – perhaps miraculously – the child of her and Mr Smith (previously in prison in UK, now in Nigeria). As this child was born after 2004 act, the child is not an Irish citizen, but nonetheless enjoys a right of residence parasitic upon its mother’s right of residence. A further child appeared in Ireland in 2006, and in late 2006 Mr Smith illegally re-entered Ireland with another child.

The Minister for Justice subsequently sought Mr Smith’s deportation. Though Mr Smith challenged this decision, in particular in light of the decision in Zambrano, the Minister contended that the issue of Mr Smith were not dependent upon him and therefore that Zambrano did not apply.

The High Court, in 2012, refused Smith’s application for judicial review. The court saw the logic in the arguments of the Minister for Justice, principally – that there is an inherent illogic in the claim that a child is dependent upon a person when that person has, through their own actions, caused themselves to be incarcerated:

“It is clear that while Mr. Smith was, purportedly, in Ireland seeking to place reliance on whatever legal rights he might have in the context of the Irish immigration system, he had in fact, again, travelled to England. On the facts of this case, there is, therefore, no reality to the asserted position of Mr. Smith in respect of his family. He has repeatedly left the jurisdiction and not tended to the needs of his family. The failure is, therefore, directly connected with the very rights now sought to be asserted.”

The rationale behind Smith is entirely consistent with Zambrano. In order for a deportation order to breach the rights of an EU citizen under the treaties, that citizen must be so dependent upon the non-Citizen that they would be forced to leave the territory of the EU with them. It is difficult to argue, in most circumstances, that a child is dependent upon an incarcerated parent. It is extremely difficult to argue that their continued residence within the EU is dependant on an incarcerated parent.

The decision in Smith broadly corresponds with the intended aim of the Raab amendment. It is, in my opinion, entirely reasonable to conclude that where someone has been sent to prison for a considerable period of time, their children are no longer dependent upon them. Therefore, notwithstanding ECHR issues, it appears that Dominic Raab’s amendments to the Immigration Bill are entirely consistent with Community Law.