A nice constitutional crisis: Labour win on a smaller share of the vote than the Tories

Imagine this election scenario: the Tories win the largest share of the vote across the UK, but Labour are returned to office with a small majority. It could happen: the Conservatives actually have to win by a margin of around 9% to secure an overall majority, owing to the absurdities of the First Past the Post voting system and Labour’s gerrymandering of constituency boundaries. Admittedly, the ComRes opinion poll last week gave the Tories a 17% lead over Labour; but the most recent ICM poll, also last week, gave them only a 9% lead. (See the BBC’s excellent poll tracker charting the trends shown by different opinion polls over the past few years.)

Obviously, a hung parliament with the Tories having the largest share of seats is a more likely result than a Labour majority despite the Tories gaining the largest share of the votes. Or we could of course have a situation where Labour wins more seats overall, but not enough to form a majority, even though the Tories poll more votes. In all of these cases, the West Lothian Question would really come to the fore, in that it would be Labour’s disproportionate return of Scottish and Welsh MPs that would prevent the Tories from winning a majority or allow Labour to secure one. In all of these scenarios, the Tories would probably win a majority of English MPs.

How aware or concerned would people in England be about the national dimension to this situation of political stalemate or worse (a deeply unpopular Labour government) caused by an election result that failed to reflect the popular will to an even greater extent than normal, in that not even the largest party, in electoral terms, was in a position to form a government? Doubtless the media would conspire with the establishment parties to suppress the uncomfortable fact that the UK result was the consequence of Labour’s relative strength in Scotland and Wales (coupled with the voting system) overriding the will of the English people – although the Tories themselves are highly unlikely to command the support of the majority of voters even in England. But it could become embarrassingly obvious, even to the politically indifferent, that a minority or majority Labour government was totally reliant for its survival on its Scottish and Welsh phalanxes, and that Labour was happy to disregard the way the English had voted so long as the West Lothian Question allowed it to cling on to power.

What would happen in the case of a Labour majority or plurality based on a smaller share of the vote than the Conservatives? Precedent from the last hung parliament, in 1974, would indicate that the Queen would ask the leader of the largest party in parliamentary terms, i.e. Labour, to form a government. Under such circumstances, a man with the genuine leadership qualities that Brown sadly lacks might try to form a unity government: a coalition with the Tories and perhaps the Lib Dems, too, although not with the Lib Dems alone, as that would be correctly interpreted as simply a tactic to shut the Conservatives out of power and to retain a supposedly centre-left government. The more likely outcome would be that a Brown minority or majority government would attempt to soldier on despite its lack of a mandate – at least in England – and would try to morally blackmail the other parties into allowing it to function, on the basis that the economic crisis made political stability imperative. A minority Conservative administration would, I’m sure, behave in like manner: the Conservatives want to hold the reins of power on their own, regardless of the actual will of the electorate. So they’d probably set their stall out with an emergency budget and painful cuts in English public services (bearing in mind their direct spending in most areas relates to English (and occasionally Welsh) services only) and would then go to the polls for a second time to try to win a ‘mandate’ – defined as a parliamentary majority, not a majority of votes across England, let alone the UK.

Whichever party forms the next government is in a strong position to work this two-election poll vault into power, as Labour in fact did in 1974: carry out some emergency measures, and then seek a mandate and win a majority in a second election. The real political-credit crunch would come if a Labour government with an unrepresentative small majority tried to carry on for a full term, or if a second election produced an equally unsatisfactory result. Then, and probably only then, a constitutional crisis might occur that could lead to some fundamental reforms being made.

For example, a Labour government (after the first election) would probably try to force through legislation on electoral reform, including the proposed referendum on the Alternative Vote (AV) system. Any second election might well be conducted using AV, if a majority of voters backed it. This change would probably be decried by the Tories as an attempt by Labour to keep them permanently out of power, as AV – which is not a proportional system – would be likely to favour the centre-left majority in England and would bolster the leading unionist party (i.e. Labour) in Scotland and Wales. (You wouldn’t expect the Gerrymander Party to support a voting system that was not biased in its favour, would you?) In fact, based on the very same national electoral logic outlined above, AV might well return another majority Labour government based on a smaller share of first-choice votes than the Tories. However – and here’s the clever part – Labour would try to make out that this was a more genuine mandate as AV allegedly ensures that each MP enjoys the support of the ‘majority’ of their constituents. In fact, it does no such thing, as the 50%+ support each elected MP has to obtain through AV is merely an artifice of the voting system itself: in theory, you could carry on eliminating all of the last-placed candidates in an AV-based vote until only the last man, or woman, was left standing, and they could then be said to command the support of 100% of voters. But that figure is no more real than the 50%+ share proponents of AV say it engenders.

Imagine the Tories’ fury if they were frustrated in their lust for power by a change in electoral system for a second election in 2010 producing a majority Labour government from a smaller share of first-choice votes than the Conservatives! Not only would they be furious but so, this time, would many people in England, as, once again, the Labour majority would be dependent on the West Lothian Question.

The alternative scenario – a minority Conservative government seeking but failing to obtain a majority in a second election – would also be likely to add momentum to calls for fundamental reform. Under such circumstances, the Conservatives would have to rely on support from the Lib Dems in order to govern, perhaps in a coalition. The Lib Dems might then find themselves in a position to demand some meaningful reform measures, such as a move to a genuinely proportional voting system and a constitutional convention. Knowing the Conservatives, they would probably insist on ‘postponing’ such measures till later in the parliamentary term, or to a subsequent term, in the hope – no doubt – that they could put them off indefinitely.

For those, like me, that support the goal of an English parliament, what would the most favourable scenario be? The ‘best’ options would be the small-majority Labour government based on the West Lothian anomaly or a strong Conservative majority with very little representation in Scotland, as these are likely to get up the hackles of the English- and Scottish-nationalist constituencies respectively. On the other hand, a minority Labour or Conservative government, having to rely on the support of the other parties in order to govern, would be the least desirable outcome, as they would be able to appeal to the need to preserve ‘national unity’ and political stability to steer the UK out of its economic and fiscal crisis.

So as a supporter of an English parliament and of fundamental constitutional reform, one is in the invidious position of wishing for the election to bring about a constitutional crisis. But such a crisis would arise only because the established parties are determined to continue exploiting the unrepresentative character of the present system for their own advantage rather than realigning politics so that government is genuinely accountable to the people it affects. The refusal to remedy the West Lothian Question and address the more fundamental question of the governance of England are just part of a general unwillingness to reform a system that gives the main parties such unaccountable power: Labour needs its disproportionate representation from Scotland and Wales to govern England, and the Tories need their disproportionate representation from England to govern the UK. It may perhaps require a situation in which the UK becomes ungovernable – i.e. unworkable minority governments, a Labour government hated in England, or a Tory government hated in Scotland and Wales – to force the hand of the political elite and to bring about a situation in which all the nations of the UK can genuinely elect the government of their choice.

So we should perhaps wish for the Tories to win the election (on votes) but for Labour to return to power (on seats). Such a nice constitutional crisis may bring about political and economic turmoil in the short term; but in the long term, it may be the route to restoring English democracy.

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