On Corbynism and Electability

Unless you've been living in a media-free void for the last three months, it's likely you've heard the name of Jeremy Corbyn, the long-time labour MP, anti-austerity activist, and apparently thoroughly nice bloke who is currently among those running for the Labour leadership. If you are aware of him (I don't like to assume) you're probably also aware that he's tipped to win, and that the Labour establishment is in the throes of a hissy fit the magnitude of which has it one Corbyn-favouring poll away from demanding a copy of his birth certificate to prove he's not actually Kenyan before curling up in the foetal position and screaming 'I don't want to go to the election because the other parties will laugh at me' over and over again.

I have my own opinions on Corbyn and his campaign and, like even some of his supporters, I have certain reservations about the pragmatism of some of his policies. However, as always it's difficult to tell which of these reservations are informed and which are subject to media prejudice. My reservations on so-called 'corbynomics', it would appear, are largely informed by a media who instantly condemned them as lunacy when, in fact, many leading economists and writers have since come to their defence. After all, there's been a significant narrative shift in economics in the last thirty years, and it's important to recognise that many of Corbyn's policies were, not so long ago, considered mainstream. Although I don't have the knowledge to make an educated statement as to whether or not corbynomics will fix all the country's problems, the wide participation of well informed parties on both sides of the debate suggests it's at least an open question, and thus merits more serious discussion than the dismissive and often sneering approach of many in mainstream politics and media.

Ostensibly, Corbyn's policies are fundamentally about helping people, promoting peace, creating a fairer society, all that good stuff... It's hard to imagine that anyone in the Labour Party, or anyone at all, would come out and say they think these are bad things. Even the right wing of the party – it would be nice to assume – would not be supporting a programme of austerity that's ravaging our public services and leaving people destitute if they thought there was another way. Their argument, without really acknowledging their own ethical or practical standpoint, is that Corbyn's policies simply won't resonate with the public, and Labour under Corbyn will thus be destined to lose election after election (providing there isn't a coup before we even get to the first one).

The argument here is that, while Corbyn's ideology may be (ideologically) great, it's not going to win any elections, and there's no glory to be found in opposition.

There are two problems here: the first is that this kind of thinking betrays what I'd argue is a serious misunderstanding of the British Constitution; the second is that, though nothing's certain, Corbyn's chances of winning in 2020 deserve more serious consideration than they've received.

Think back a moment to before the May 2015 election. Try and forget what you know and what you've read since, and ask yourself what the generally accepted reason was for Ed Milliband's being unelectable? Largely, it was somewhere between his being unable to eat a bacon sandwich correctly (yawn) and his being 'too weak' to lead the country. Since the election, however, the accepted narrative is that Milliband lost by taking the party too far to the left, which people simply didn't want. This idea of 'what people want' is largely why Harriett Harman whipped the party into abstaining on the now infamous Welfare Reform Bill.

Harman claimed that the party couldn't vote against something the British people had given the Tories a mandate for; however, with a voter turnout of 66%, and a conservative vote share of 36%, only 22.3% of the UK's adult population actually provided this mandate.

There's a serious problem here. The British constitution has a fairly ambiguous approach to the separation of powers: some have described the system as almost completely fused, and at the very least it's fair to say the legislature and the executive are very close. The point of having separation is to prevent any one branch of the state having excessive power, and this is particularly important where – for instance – the elected executive represents only 22% of the population. Having an active parliamentary opposition is important because, if you don't, the executive, on the mandate of that 22%, are able to turn bills into laws with remarkable ease, and when these bills represent an ideologically driven austerity programme, that's something we should be worried about.

The point is, when people say that it's no good being a party with principles if you're going to be in opposition, they are totally, dangerously wrong. To be a party with principles who manages to present serious opposition to ideological legislation is far more valuable than pandering to the narrative of the incumbent party in the hope of skimming off swing voters, presenting no resistance to harmful bills, and mandating yourself into keeping the status quo even if you do win. This is without mentioning the fact that, let's face it, if you're a dyed in the wool supporter of conservative fiscal policy, who are you going to vote for anyway: the conservatives? Or a labour party presenting the same policies, but a little less defined and with a shakier hand?

Ultimately, though, arguing the value of being a strong opposition party is predicated on the assumption that Corbyn, if elected Labour leader, would lose the 2020 election, and this is not as much of a certainty as some people might have us believe.

People often look to Tony Blair's landslide victory in the 1997 general election as proof of that New Labour style policies are the only credible politics for a modern Labour Party. However, a look at election statistics since Labour's low point in 1983 shows a steady raise in its vote share starting before the emergence of New Labour (27.6% to 30.8% to 34.4% to 43.2%), and a consistent decline amounting to five million votes lost under them (from 43.2% to 40.7% to 35.2%, 29%...). New Labour's 13 years in power also saw the party's membership shrivel to the lowest level in its history. Take all this into consideration, and arguments that the party would stand a better chance of winning if everyone would just go back to deregulating the banks and listening to D:ream just don't seem that credible. And yes, I know New Labour did some great things too. But if the Conservatives have co-opted a lot of that progressive social legislation that made New Labour credible (the minimum wage, gay rights), and taken it one step further (the living but not really living wage, gay marriage), what is the Labour Right's claim to being anything but so-called 'blue collar conservatives'? 

In any case, showing that the answer doesn't necessarily lie to the right doesn't automatically suggest that it lies to the left*.

In May 2015 Labour lost by 7 percentage points (just under 2 million votes) and, in our First Past the Post System, this translated into a disproportionately high number of seats.

The vast majority of the seats Labour lost were to Scotland's SNP - a party who are at least rhetorically to the left of Labour - and Given the Scots' historic voting habits, it's hard to imagine any of the four leadership candidates standing a better chance of winning back some of their support than Corbyn.

Additionally, although it's difficult to speculate as to the effect it would have had under a more proportional electoral system, the million votes that went to the greens and the nearly 4 million that went to UKIP, if spread out across constituencies, would not have been insignificant. The mention of UKIP voters might sound bizarre, but it's important to remember UKIP is in no small part made up of working class people disillusioned under New Labour. A survey has even shown Corbyn to be as popular among UKIP voters as Labour ones.

The movement of seats is also attributable to the total devastation of the Lib Dems in 2015 and the redistribution of their members' votes among the other parties. Interestingly, while he was not on the scene in the last election as he his now, the same survey cited above shows that Corbyn is also popular among these voters, and thus might have attracted more of them towards Labour than came in the last election. Finally, let's not forget how the Lib Dems got into parliament in 2010 in the first place: charismatic leader, hype around hustings and debates, mass appeal to the student vote... sound familiar?

What's interesting about the Lib Dem example is that Nick Clegg and his party came to share power, and lose it so spectacularly, by courting and then betraying the interests of the young. And if there's one demographic (apart from Old Labour voters returning to the fold) who Corbyn really appeals to, it's the young...

The vast majority of the Conservatives' lead over Labour in the 2015 election was provided by the 65+ vote, a demographic with a 78% voter turnout. However, in the three age bands between 18 and 44, which represent the majority of the population of the UK, the Conservatives either had no lead or had a smaller vote share than Labour, indicating a more general leaning towards Labour values among these age groups. The difference is that these demographics see a considerably lower voter turnout (43%, 53%, and 64% respectively). In fact, since 2010 Labour has seen a bigger percentage gain of the vote share than the Conservatives in all age bands except the 65+ group, it's just that the over 65s are more likely to vote. Were Labour to mobilise younger voters - which the Corbyn campaign is undeniably doing – they would stand a very real chance of significantly outnumbering the older Conservative support base, and this is only one among the above-identified groups to which the Corbyn campaign seems to appeal more than any other candidate.

My point here isn't to prove that Corbyn will win an election in 2020. I can't. But the arguments doing the rounds appear to be that he is unelectable, and that there's no value in being principled if you're in opposition, both of which I think are worth refuting.

If you're on the fence about Corbyn because of his policies, providing they actually are his policies**, that's totally reasonable. But if what's holding you back is a fear of losing in 2020 and being left powerless in opposition, neither of these are inevitabilities, and principle might just be the thing that ensures they aren't.

* Assuming that Corbyn is, actually, to the left. This is something about which he's often reticent, preferring to be defined rather by his policy, some of which doesn't share roots with either the traditional Left or Right.

 **See: Chris Leslie on Corbynomics; the women only train carriages thing (where a man consulting women on an issue that effects women instead of legislating for them without consultation is somehow framed as sexist); Corbyn's 'friends' in Hamas and Hezbollah (where treating people you're trying to negotiate peace settlements with amicably is seen as supporting terrorism instead of reasonable diplomacy...) etc.

On the Human Rights Act 1998

It may seem a bit ridiculous that anything called the Human Rights Act should have quite as much negative press as it does, human rights being widely recognised to be a good thing and all. But then this isn't the strongest argument: we need only look to America's 'Freedom and Patriot Act' for an example of how the names of statutes can be deceiving.

So why do people take issue with the HRA? It's very hard to say in logical terms, because the reasons aren't particularly logical. If I had to put my finger on a reason – or chain of reasons – it would be this: in the UK we have a media industry that is in no small part based on shock, outrage, and titillation. We like to be outraged. Misleading headlines glanced from someone else's paper on the tube are as indispensible a wakeup mechanism as coffee and a shower. This means papers are sure to shift copies - or make advertising revenue - from stories about terrorists and murderers being saved from deportation on the grounds that they've got families, or pets, or have managed to make an avocado stone sprout using three cocktail sticks and a glass of water, that takes a lot of commitment, and it shows that they've... erm... established roots in the UK*. Of course, with the shifting of copies comes the shifting of public opinion and, sooner or later, it makes political sense to make this a key election policy, even if it makes sense in nearly no other way.

This, at least, is my theory.

If the problem is largely one of public opinion on legislation being formed second hand, it makes sense to look at the legislation itself, so let's do that:

The HRA works a little bit like an English-European plug adaptor (because Human Rights law isn't the only place where pointless English exceptionalism is an issue). It allows us to 'plug in' to the European Convention on Human Rights and use its provisions in our own law. The controversy seems to arise from the idea that the European Convention binds our courts and so prevents British autonomy in enforcing laws that represent those well known 'British values' that we can all unequivocally agree on...like not skipping queues or whatever.

To be balanced, the controversy is not totally without cause. In the beginning the courts did have a tendency to blindly follow Strasbourg's lead - something Jack Straw has since recognised - but this was not because they were forced to. It simply took a while for our judges to find their groove.

When it comes to following the convention, the provisions of the HRA are actually largely discretionary. The act gives a lot of freedom to English judges, obliging them often only to 'take into account' what is happening in Europe. A court must adhere to the convention, according to Sir Brian Leveson, only when there are two viable and legal decisions, one complying with the convention and one not; however, even then, a 'declaration of incompatibility' (s4) need not necessarily undermine provisions in English law. As Lord Faulconer has pointed out, the UK Supreme Court can, and does from time to time, depart from decisions by the European Court. What this essentially means is that, from a legal standpoint, English courts aren't obliged to do very much at all. The parliament may well feel pressure to change legislation once an incongruency with the convention has been exposed, but this is more down to political expediency than to legal obligation.

What the HRA does very well is provide a safety net for human rights. That is, in the absence of existing legislation relating to a problem arising, the act obliges all public bodies to comply with the convention. This means that, whatever happens, those fundamental standards of human rights that the UK played a big role in defining after the war are upheld. If parliament later wants to better define a situation and create suitable laws more in line with those totally clear, well defined, and not at all subjective 'British Values' we all know and love so much, like the queen's right to own all the swans or whatever, it can.

Ultimately, then, parliamentary sovereignty and the Supreme Court are not threatened by the Human Rights Act.

This said, it doesn't look very good for a government if it finds itself challenged regularly on human rights issues. The ECHR is an unfortunate thorn in the side of a fair amount of current legislation, and this may partly explain the government's aversion to it. For example: the freedom of speech implications of the Public Order Act 1986 ss4/5, which are being used more and more and, among other things, have recently led to a student protestor being arrested for telling an (admittedly stupid) joke; the right to privacy implications of the 'snoopers charter' and the recent changes to the Computer Misuse Act 2010 to give immunity to police for hacking offences; and, of course, the consequences for the right to fair trial as enshrined by Article 6 of the ECHR in a country where legal aid is being eviscerated, leaving people to fend for themselves against trained lawyers (often with the sympathy of judges who will lengthen proceedings for the sake of untrained defendants and, ironically, generate increased financial and administrative pressure on the courts).

In the interest of fairness, the act is not without its problems, but the solution is certainly not doing away with it altogether. One such problem is when convention articles are invoked as a defence where they have no real chance of winning. This often occurs in housing disputes where Article 8 (respect for private and family life, home, etc.) is invoked, and usually serves only to waste the courts' time and rack up lawyers fees, both of which are undesirable and expensive outcomes that don't really help anyone... except lawyers. Still, as far as solutions to fairly minor problems go, scrapping the act is really just cutting off the nose to spite the face (which would incidentally be contrary to Article 3 of the convention regarding acts of torture).

Talk of establishing an alternative UK Bill of Human Rights largely ignores just how gargantuan an endeavour that would be. Before we even get there, however, it's necessary to acknowledge just how integrated the ECHR has already become in our common law, as Lady Justice Arden has recently done in comparing it to the Magna Carta. To quote Lord Hope, former deputy president of the UK Supreme Court: problems with the HRA are 'more imaginary that real', and trying to uproot its effect on the common law would be akin to 'getting rid of Japanese knotweed'.

Even if you couldn't care less about people in the UK having enshrined rights to live and express themselves and not be slaves and other totally inconsequential stuff like that, our no longer partaking in the convention could also have other wide-reaching effects**. The UK is a key influence on the European courts and thus our participation helps uphold human rights in other states. Even Dominic Grieve QC, the former conservative attorney general, has pointed out that the UK pulling out of Strasbourg could render the convention 'inoperable'. Angela Merkel seems to be aware of this, and has identified our pulling out as a possible 'red line' for our continued membership of Europe (pending referenda aside), the consequences of which for other UK legislation and trade agreements would create enormous problems for both law and business that would take years to resolve. Ultimately, even leaving aside an interest in human rights per se, to pull out of the convention could prove inefficient, expensive, and impractical in all kind of areas.

This takes us back to the central question, why are we doing this? The only answer I can really find is in the media. Inaccurate and irresponsible reporting on human rights seems to be rife, and this unfortunately includes within the legal profession: a critique of the act by Richard Castle in the Law Society Gazette, in its quotation of the HRA 1998 s3, conveniently misses out the words 'so far as it is possible to do so', which precede the paraphrased: 'legislation must be read in a way which is compatible with [...] Convention rights'. The article also fails to mention the later clauses qualifying when this provision does not apply.

It seems to be becoming increasingly clear to the government that their plans are not practical, things have gone very quiet around the issue in recent weeks, and we can only hope their lawyers will advise against scrapping the Human Rights Act in favour of a British Bill of Rights proposed by a Justice Minister with no legal expertise. In any case, we need to acknowledge that, even in spite of the informed arguments of some of the strongest legal minds in the country today, the sensationalist media can have a disturbing influence on policy and, whether legally minded or not, we all need to engage more readily, and more directly, with these questions before letting outrage get the better of us. Otherwise the true, universally representative, culturally and socially unifying and not at all vague 'British Values' that we all unquestionably share may be under threat. British Values.

* This was never, to my knowledge, a thing. But frankly, that's the kind of practical expertise our overly service based economy could use.

** Abrogating the HRA would probably not lead to murder, torture, slavery, and mass censorship... probably.