There is a growing air of desperation in the cross-party efforts to stymie British Prime Minister Boris Johnson’s threat to by-pass parliament, and even to ignore a motion of no confidence against him and his government by the House of Commons, in order to force through a no-deal Brexit. It is remarkable that in all the analyses of this political rupture and how best to avert it, the one example of the successful use of the very strategy that Johnson has laid out has been entirely overlooked.
Johnson’s plan is as simple as it is dangerous. It is at heart a profound breach of the political conventions and parliamentary practices that underpin the fragile institutional structure of the Westminster system. Johnson and his unelected side-kick Dominic Cummings have openly canvassed ignoring the central tenet of the Westminster system – a confidence vote of the House of Commons which determines the formation of government – by refusing to resign or to recognise the alternative government of the House, and instead to dissolve parliament and call an election while remaining in office.
Inevitably this would call into question the role of the Queen through the potential invocation of the residual prerogative powers of the Crown over the formation of government. Would the Queen privately or otherwise let it be known that a confidence vote of the House must be respected as the defining motion, the sine qua non, of the Westminster system? Would she advise Johnson if he sought an election, to return to the House to see if an alternative government could be formed?
Those now manoeuvring against Johnson’s plan to evade a vote of the House by ignoring that vote, dissolving parliament and calling an election, might be surprised to know that not only is there an Antipodean example of precisely this extreme strategy of defying parliament and shredding political convention, that it succeeded on every point.
The context was the 1975 dismissal of the Australian Labor Prime Minister Gough Whitlam by the Governor-General Sir John Kerr, the Queen’s representative in Australia, and Kerr’s appointment of the Opposition Liberal party leader Malcolm Fraser as Prime Minister in Whitlam’s place, without the confidence of the House of Representatives. In a direct parallel to the path now proposed by Johnson, Fraser then lost a confidence motion in the House by 10 votes – and refused to resign. That ‘want of confidence’ motion also proclaimed the confidence of the House in a government led by the vice-regally deposed Gough Whitlam and called on the Governor-General to reinstate the Whitlam government. The Speaker was despatched to inform the Governor-General of the confidence motion and the House adjourned in order for this to be done.
What followed was a replica of Johnson’s no-deal Brexit strategy, set in action forty-four years ago: ignore the confidence motion of the House, defy the Speaker andcall an election while remaining in office. The Liberal party leader Malcolm Fraser followed that path precisely, ignoring the confidence motion against him, defying the confidence of the House in an alternative government, dissolving parliament and calling an election while remaining Prime Minister, taking all the benefits of incumbency into that election.
It is surely no coincidence that Johnson and Cummings are being advised in this dire ‘winner takes all’ approach by a key Australian strategist, Isaac Levido, a former deputy director of the Liberal party and protégé of Sir Lynton Crosby, himself a scion of the Liberal party which had in 1975 under Malcolm Fraser successfully engineered this strategy of parliamentary disruption and breach of convention. Both men know their party history of which the British conservatives are now the dubious beneficiaries. It is not an honourable course. This highly damaging, ultimately successful, process is now again in train through the anti-parliamentary path which Prime Minister Boris Johnson has proposed.
What that time of immense upheaval in Australian politics tells us, is that mere political convention is no match for those who would undermine centuries of parliamentary and political practice, claiming that it is neither unconstitutional nor illegal to do so. That is the nature of political conventions. Their protection and respect are more matters of political ethics and practice than law, leaving them wide open to opportunistic abuse by those willing to risk an entire system for their own political gain.
Jenny Hocking is emeritus professor at Monash University and Distinguished Whitlam Fellow at the Whitlam Institute at Western Sydney University and award-winning biographer of Gough Whitlam. Her latest book is The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975 – The Palace Connection. The Special Leave Application against the Full Federal Court’s decision in the ‘Palace letters’ case will be heard in the High Court in Sydney on 16 August 2019.