By-Elections are a distraction, reform is the real prize…

The news came in fast that the Liberal Democrats took a seat in Devon, safe to the Tories before and the result of a massive tactical swing to the Lib Dems. Also, the government in waiting party took a seat in the North of England which was being described as a ‘red brick’ in the rebuilding of the once staunchly labor ‘red wall.’

But as a resident of a devolved ‘nation’ I cannot help but raise an eyebrow as to why this is deemed seismic to the survival of the government. I am not naïve; I know that this Union is England dominated and that due to a lack of Federalism the “UK Government” is also the ‘English Government’ as the closest to devolution they have are regional mayors with limited powers, yet crucially without legislative powers these mayors are de facto UK government civil servants with mandates.

The other obvious outcome of these ‘mid-terms’ is that post-Brexit identity politics has embedded itself into the psyche of Northern and Southern English voters. So much so that I now believe Labor would be completely insane to not use their next mandate to push through real electoral reform. The kind that could see a return to the two-constituency model of past centuries but with a modern proportional representation form of voting.

It would do a lot for England but also the whole UK if we had alignment across all layers of government. There are quirks, Northern Ireland operates PR-Single Transferable Vote for the Assembly and Local Government. Scotland has its list system, which throws up wildly different results than the constituency seats.

But moving on from first past the post (FTTP) isn’t some technical exercise in the mind of keen sluggerites. It is, as Sir Keir will know from his legal training, a revolution in the socio-legal culture of the UK. It is something that could be the method of even saving the Union itself. As an interim measure it would force institutions like Parliament to adopt more legally enforceable rules and processes rather than the odd conventions that Boris Johnson has rode roughshod over.

One example is the ‘Sewell Convention’ which means Parliament will not legislate on a matter of devolved competence over a devolved nation without a legislative consent motion from the legislature of that nation. Northern Ireland MLAs made their consent very clear when it came to the protocol, yet this government has tabled legislation to unilaterally disapply the agreement. Even taking a very strict textual approach to the law, the Protocol as an international instrument is not within devolved competences. However, its implementation (ie the bill) is because it requires devolved areas of NI law to follow EU law and regulation by NI only bodies like DEARA.

We saw some of this with the Supreme Court referendum hearings, Cameron’s government did not draft the legislation to enable the vote as a binding measure. So, in line with ancient principle, the court (rightly in my view) decided that Parliament had to assent to the repeal or amendment of the European Communities Act and then the Prime Minister using prerogative powers could trigger Article 50 – as the UK is a dualist system Treaties are not recognized as binding by domestic courts.

Countries with proportional systems often have a plethora of parties which is usually the critique given by FTTP supporters. Yet despite living under the biggest Conservative majority since the 1980s I don’t look at Westminister and think ‘stability’ over say a coalition like Fine Gael, Fianna Fail and the Greens which courts a fraction of the controversy than the one-party cabinet of the UK government.

We may have fallen into all these questions as a result of the cold shower that was the Brexit referendum result. But they will not go away and if Labor do not use their mandate to fix it then they will never govern again, there is just too much at stake and the amorphous coalition that is the Tory party will gain another prolonged period of unchecked power.

Jay is a Derry native now living in south Antrim and working in Belfast. His writing spans Law, Economics and International relations.

* He writes in a strictly personal capacity *

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