Ed Miliband addresses an audience on the NHS in the Brooks Building of Manchester Metropolitan University. Photograph: Getty Images.
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Even if Miliband is a second-placed prime minister, it would still be a victory for Labour to savour

Were the Labour leader to take power it would be a triumph for parliamentary democracy against the elite. 

Before the 1997 election, Roy Jenkins compared Tony Blair to a man carrying a priceless Ming vase across a highly polished floor. Ed Miliband has no such precious artefact. If he does enter office, it will be without a majority, let alone Blair’s glistening 179. But the analogy captures the comparable sense of anxiety in Labour today. Shadow cabinet members concede that even they have been surprised by how well they have fared to date. The party has proved resilient against the Conservative onslaught on Miliband and its economic credibility. The Labour leader, who a year ago lost his fight with a bacon sandwich, has been mobbed by a hen party on the campaign trail. Barring a significant shift in the polls, he will become prime minister after 7 May. It is this that explains Labour’s creeping nervousness. Despite the Conservatives’ deeper coffers and media firepower, the prize is “ours to lose”, in the words of one shadow cabinet minister.

The prospect of short-circuiting Labour history by returning to power after just one term, however, is marred by the knowledge that it is unlikely to be a clean victory. The forecasts that show Miliband heading towards No 10 do so only on the assumption that he would secure the support of the SNP in a hung parliament.

It is this that the Tories are exploiting mercilessly. Conservative strategists believe the message that the SNP would hold the whip hand over Labour is potent enough to attract the Ukip defectors and southern Lib Dems whom they have yet to persuade. David Cameron’s warning that English hospitals would be starved of funds and bypasses would remain unbuilt was a mark of the demagogic lengths that the Tories are prepared to go to. Such is the extent to which the Tories have talked up the SNP that it is easy to forget that they are running candidates in each of Scotland’s 59 seats.

Conservatives question both the morality and the efficacy of this ploy (one MP tells me that it is “crowding out” the party’s positive economic message). Yet it has discomfited Labour. For the first time since the campaign began, the party unambiguously lost the “air war” as broadcasters prioritised the Tories’ anti-SNP blitzkrieg over Labour’s “NHS week”. Candidates from all parties testify that the theme has entered popular conversation. Miliband has ruled out a coalition with the SNP but has stopped short of rejecting any arrangement for fear of de­legitimising the Scottish voters who only recently resolved to remain part of the UK.

“If you hold the balance, then you hold the power,” Alex Salmond has declared, a grandiose aphorism repeatedly cited by Cameron. The leverage the SNP would enjoy is not as strong as suggested. The natural pro-Trident majority across the three main parties would prevent the Nationalists from threatening Britain’s nuclear weapons. They could vote down Labour Budgets but only at the cost of allying with the Tories and obstructing measures endorsed in their manifesto such as the repeal of the bedroom tax and the reintroduction of a 50p income-tax rate. Yet, since the party’s overriding goal is an independent Scotland, it has less reason to fear policies being blocked by a Westminster system that is apparently impervious to change.

The Tories’ new strategy may still fail to give them the seats they need to govern. Every constituency that the SNP wins off the Lib Dems and every one that the Conservatives take from their coalition partners reduces the bloc of potential supporters available to Cameron in lieu of a Tory majority. Labour may still secure the 43 gains it requires from the Conservatives to be the single largest party in the event that it loses all 40 of its Scottish MPs to the Nationalists. But even if Miliband falls short, he could emerge as the only leader capable of assembling the 323 votes needed to prevail in the Commons. It is this that creates the possibility that, for the first time since 1924, the party that finishes second not merely on votes (as Labour did in February 1974 and the Tories did in 1951) but on seats could form the government. Miliband could face the nightmare scenario of what one MP describes as “dual illegitimacy”: depending on the votes of a nationalist party to pass English-only legislation (a two-fingered answer to the West Lothian Question) and ruling as runners-up rather than victors.

Though politically treacherous, there is no constitutional obstacle to Labour taking power in these circumstances. An administration would have to be formed eventually and the party could point to European examples (such as Willy Brandt in Germany and Fredrik Reinfeldt in Sweden) of second-placed leaders assuming office. The resultant government would be denounced as “un-British” and “unfair” – but so was the coalition, by some. It would be up to Miliband to earn political legitimacy swiftly by introducing popular policies and radiating competence. After the painful birth, the fate of his government would ultimately rest, as all do, on the performance of the economy and the success of its reforms.

There is fear among some Labour MPs that the 2015 election could be a victory (or non-victory) from which they never recover. They envisage a later election in which Ukip erodes the party’s working-class base, the Greens capture its middle-class redoubts and the resurgent Conservatives (led by Boris Johnson or Theresa May) eat into both. But for Miliband to become prime minister, having repeatedly been told by so many that he could not, would still be a victory for Labour to savour. He would have entered office despite the overwhelming opposition of the media and the corporate sector, the forces regarded since the Thatcher era as exercising a de facto veto over British elections. Whether Miliband finishes first or second, parliamentary democracy will have won.

George Eaton is political editor of the New Statesman.

This article first appeared in the 24 April 2015 issue of the New Statesman, What does England want?

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How tribunal fees silenced low-paid workers: “it was more than I earned in a month”

The government was forced to scrap them after losing a Supreme Court case.

How much of a barrier were employment tribunal fees to low-paid workers? Ask Elaine Janes. “Bringing up six children, I didn’t have £20 spare. Every penny was spent on my children – £250 to me would have been a lot of money. My priorities would have been keeping a roof over my head.”

That fee – £250 – is what the government has been charging a woman who wants to challenge their employer, as Janes did, to pay them the same as men of a similar skills category. As for the £950 to pay for the actual hearing? “That’s probably more than I earned a month.”

Janes did go to a tribunal, but only because she was supported by Unison, her trade union. She has won her claim, although the final compensation is still being worked out. But it’s not just about the money. “It’s about justice, really,” she says. “I think everybody should be paid equally. I don’t see why a man who is doing the equivalent job to what I was doing should earn two to three times more than I was.” She believes that by setting a fee of £950, the government “wouldn’t have even begun to understand” how much it disempowered low-paid workers.

She has a point. The Taylor Review on working practices noted the sharp decline in tribunal cases after fees were introduced in 2013, and that the claimant could pay £1,200 upfront in fees, only to have their case dismissed on a technical point of their employment status. “We believe that this is unfair,” the report said. It added: "There can be no doubt that the introduction of fees has resulted in a significant reduction in the number of cases brought."

Now, the government has been forced to concede. On Wednesday, the Supreme Court ruled in favour of Unison’s argument that the government acted unlawfully in introducing the fees. The judges said fees were set so high, they had “a deterrent effect upon discrimination claims” and put off more genuine cases than the flimsy claims the government was trying to deter.

Shortly after the judgement, the Ministry of Justice said it would stop charging employment tribunal fees immediately and refund those who had paid. This bill could amount to £27m, according to Unison estimates. 

As for Janes, she hopes low-paid workers will feel more confident to challenge unfair work practices. “For people in the future it is good news,” she says. “It gives everybody the chance to make that claim.” 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.