JENNY HOCKING. Brexit in the Antipodes

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.

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4 Responses to JENNY HOCKING. Brexit in the Antipodes

  1. ANDREW FARRAN says:

    A further point is that it is now acknowledged that the making and breaking of governments occurs in the lower or popular house – though the Australian Constitution does not explicitly state this (but it does not acknowledge the prime minister either).
    In this regard Whitlam in 1975 had a clear majority in the House. In the circumstances envisaged Boris in the Commons would not.

  2. Bob Harper says:

    Hi jenny, I know you are far more qualified than me on this matter but reading the context about the 1975 event in Australia, you seem to present a very bias view and miss out some very important issues.

    1). Didn’t Whitlam also break a convention but being a PM in a position as to “unable to obtain supply” neither 1) resigning 2) advising a general election? Your comments are silent on this issue.
    2) you say when “Frazer ignored the confidence mention” he did not resign. However a PM in such a position, must either 1) resign his commissi9n 2) advise an election. He choose option 2, which was his undertaking to Kerr. His actions did not “ignore the confidence motion” Your comments seems to misrepresent this aspect.

    3) what “benefits of incumbentacy” did Frazer take to the election? He was in caretaker mode, initiate no new policies, no enquiries of the previous government. That comment really is a stretch.

    4) in Australia, the monarch and his/her representative is sovereign, does that mean the Crown is above parliament ?

    Interested in your responses.

    Bob

  3. Andrew Glikson says:

    The raison d’etre and consequence of Brexit appears to be a distancing of the UK from the social-democratic policies of the main nations of continental EU and a strenthening of the UK-USA (Trump) conservative bond, with an ensuing return to the hundreds of years-old animosities and conflicts between the French-German block and the UK?

  4. ANDREW FARRAN says:

    There are differences as well as similarities.

    If Boris loses a confidence vote, brought on by Labour, he would not have to resign immediately. Under the Fixed Terms Parliamentary Act, Boris or Parliament would have 14 days in which to gather a majority for government. If neither succeeds there would still be over a month and a half to go before 31 October – the deadline for Brexit. If there was general agreement that there would have to be a General Election, the timing of that would be critical for the Tories – too early and the Farage Brexit Party would destroy them; too late and Brexit ‘without a deal’ would be a fait accompli – an outcome already opposed by the Parliament.

    Would Parliament driven by the Brexiteers allow Boris to remain in office as a Caretaker pending the General Election as the legal process headed inexorably towards the cliff? No way. Could Corbyn gather a majority and request to form a Caretake government? Same outcome if still without a deal, unless Corbyn’s commission was conditional on a 2nd Referendum – in which case the EU may agree a further extension. But how might the referendum question be drafted so as to preclude any subsequent amendments by the parliament and being back again on the roller coaster?

    However if after the 14 days, or before, there is no confidence, and Boris refuses to budge, tries to close down Parliament and await the 31 October when by default he would get his Brexit without a deal – what then?

    The Queen will not do a Kerr. She will not have too. The British people would not stomach the necessity. Boris would have to go. He would not have public opinion on his side. The mis-founded literal constitutional arguments relied upon by Kerr, Barwick and Mason in the Australian case would not work in the UK.

    It comes down to pulling the plug on Art 50 of the EU Treaty and/or passing the Withdrawal Agreement as proposed by the May government. That way protects the Irish Border and leaves open for discussion and negotiation the UK’s future trading relationship with the UK. I see Phillip Hammond navigating a way towards this.

    How sensible!

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