The 'constitution', devolution, and a hung Parliament

[muriel_volestrangler]

A review of The British Constitution by Anthony King in the London Review of Books raises the prospect of a close election, Labour getting less votes but more seats than the Tories, and getting a lot of seats in devolved Scotland and Wales, challenges due to the 'banana republic' natures of postal voting, and what the Queen should do when there's no constitutional guidance for her:

The stars that lined up to clear the way for New Labour’s constitutional tinkering are now moving quite rapidly apart. In fact, it is not hard to imagine the result of the next general election producing its own perfect little constitutional storm. Say the national result is something like this: Tories 38 per cent, Labour 36 per cent, Lib Dems 18 per cent, with Labour and the SNP neck and neck in Scotland. This would produce a hung Parliament, with Labour probably having more seats despite having lost the popular vote (and in England the Tories are sure to have won the popular vote by an even larger margin than the national result; they managed to win more votes than Labour in England even when decisively losing the 2005 election). If the election is close, especially given the various haphazard experiments with postal and other kinds of voting that the government has introduced in recent years, there are almost certain to be legal challenges to some of the results, which would test the willingness of the courts to use their oversight to interfere in the political process (this is, after all, a voting system that was described by a judge only a couple of years ago as one that would ‘disgrace a banana republic’). The queen, meanwhile, whatever the courts decide, would have to invite either Brown or David Cameron to form a government, which would in turn depend on what concessions Nick Clegg could extract from either of them for the Lib Dems, and on how much confidence either could place in the continued support of their backbench MPs (likely to be more of a problem for Brown than Cameron). What the sovereign should do – or be advised to do – in these circumstances is emphatically not a part of the British constitution that is written down.

The negotiations are likely to be complicated by the attitude of the major parties to Scotland. The Tories are bound to point out the inequity of a Scottish Labour leader being propped up by Scottish Labour MPs, despite having failed to win the popular vote in Scotland, where the population is already over-represented at Westminster, never mind having been trounced in the popular vote in England. If the result is that Brown cannot form a government, and Cameron becomes PM, he is likely to want to use his powers to make sure the situation does not arise again, either by renegotiating the terms of Scottish representation in the House of Commons, or by pulling the plug on Scottish subsidies, or even by allowing the Scots to go their own way altogether, perhaps after a new election in which he offers the people of England the prospect of Scottish independence. This seemingly far-fetched succession of events, in which the party of union morphs into what King calls ‘the party of disunion’, is not impossible, and would fit the pattern of what Iain McLean, a political scientist (and friend of Gordon Brown), has christened the ‘Slovak scenario’. Slovakia achieved independence from the Czech Republic not at the point when Slovak independence leaders finally persuaded their own population to make a break for freedom, but at the point when Czech politicians had finally had enough, and to the surprise of many Slovaks, cut their ties with their ungrateful and permanently dissatisfied neighbours. What price then Blair’s dream of the permanent exclusion of the Tories from government? It is more likely to be the Labour Party that finds itself out of power, perhaps both north and south of the border, for a generation.

Before we reach this point, or any of the other unplanned scenarios that could emerge out of the chaos, it might be a good moment to consider the codification of the British constitution. King considers, and dismisses, the case for establishing a constitutional convention to try to introduce some coherence into an increasingly incoherent system. This is not because he believes that the problems will iron themselves out in the long run, but because he doesn’t think the politics would work. Until things start to go seriously wrong, a convention would seem to most people like a waste of time – just another talking shop, when the politicians ought to have more important things to worry about. And that, of course, is the problem. When things do go wrong and the politicians start to get seriously worried – when, for example, a contraction of the economy produces an English nationalist reaction against the featherbedding of the Scots – it will be too late: at that point the politics will be too raw for the considered detachment that a constitutional convention needs. In truth, the politics of constitutional conventions are nightmarishly difficult to get right. If the public can see what is at stake, and has a chance to vote in delegates to defend their sectional interests, as in Germany in 1919 or Iraq in 2005, you get bad constitutions. On the other hand, if the public doesn’t take any particular interest, and lets the lawyers and politicians get on with it, as at the European convention in Brussels of 2002-3, then you also get bad constitutions. What one wants, as at Philadelphia in 1787, is for an engaged and passionately committed public to be represented by delegates who cut themselves off from the public during their proceedings. And that is simply not going to happen in the world of the Today programme and Good Morning Scotland.

http://www.lrb.co.uk/v30/n03/runc01_.html

I think he's right that no-one is going to try to address this - fixing postal voting (as in 'getting it somewhat reliable', not 'fixing it around the policy') is unlikely to be addressed before the next election, let alone the other stuff. It could be an interesting election, the next time around.

[fedsron2us]

1. This echoes a lot of my thinking on this topic.

The Blair governments half hearted and botched attempts at constitutional reform have stored up a lot of trouble for the future. These issues could probably have been dealt with amicably when the economy was healthy. Now we are headed for a probable recession things may get out of hand if the next election is very close. Browns attempts to dodge the real issues does not help. The more he tries to promote his agenda of a new 'British' identity the more desperate he seems. Labour are not going to be able to dodge that 'West Lothian' bullet for ever, particularly now the Scottish Nationalists are starting to become a dominant force in Edinburgh. It is quite feasible that after the next election Labour could be the largest political party in the UK but not have a true electoral majority in popular votes or MPs in either England or Scotland. I have a very, very bad feeling about how this is all going to unravel.