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Appealing to the country

Parliament unworkable? There are precedents for sending MPs back to the people, but they might not embolden the governor-general

Tony Blackshield 19 February 2019 2205 words

Preferred prime minister: William Pitt the Younger addressing the House of Commons in 1793, nine years and two election victories after he was appointed caretaker prime minister by George III. Oil on canvas, 1793–95, by Karl Anton Hickel/Granger Historical Picture Archive/Alamy

It used to be said that the so-called “reserve powers” of the British crown (and hence of its vice-regal representatives, including Australia’s governor-general) included the power of “appeal to the country.”

If parliament became unworkable, the idea went, then the crown — without dismissing the prime minister, but also without relying on his advice — could call an election on its own initiative. In the parliamentary crisis of 1975 it was clear that Sir John Kerr intervened prematurely; but if the crisis had escalated to a level where the governor-general had to intervene, I always thought that he should have “appealed to the country” by calling an election without sacking Whitlam but also without relying on his advice. The result would have been the same, but Kerr would have avoided the cardinal sin of taking sides in a political battle.

According to the conventional wisdom, the last uncontroversial exercise of such a power was in 1784, and the last controversial case half a century later, in 1834. In fact, neither of these examples conformed precisely to the description above.

What happened in 1784 was that George III, in calling a fresh election, did in fact engineer the collapse of the uneasy coalition led nominally by the Duke of Portland, and appointed William Pitt the Younger as a caretaker prime minister. It was only as a result of the ensuing election that Pitt assumed his full powers. And in 1834 William IV did in fact dismiss Lord Melbourne from his office as prime minister, and appointed Sir Robert Peel to hold that office until the ensuing election. But at that election, and again in 1837, Melbourne was re-elected; Peel did not finally replace him until 1841.

In short, the events of 1784 and 1834 were more similar to what Kerr did in 1975 than to the nonpartisan action he arguably might have taken later on. The idea that an election can be called without a dismissal, and indeed that it can be called without taking sides in a political battle (as described earlier), thus appears to be a later invention.

George III was right in perceiving that Pitt was the preferred prime minister in 1784; William IV was mistaken in believing that the election would favour Peel in 1834. The difference has sometimes led to an assumption that what happened in 1784 was constitutionally proper but what happened in 1834 was not. According to A.V. Dicey, though, this interpretation is itself a mistake.

The first edition of Dicey’s Introduction to the Study of the Law of the Constitution appeared in 1885, but it remained the dominant authority on the conventions of the unwritten British constitution throughout the first half of the twentieth century. The very ideas of “constitutional convention,” “parliamentary sovereignty” and “the rule of law” are still largely associated with Dicey. But whereas older authorities (perhaps influenced by the parliamentary triumph in the “Glorious Revolution” of 1688) saw the sovereignty of parliament as an end in itself, Dicey (perhaps influenced by the democratic reforms that began in 1832) saw it only as a means to an end.

For Dicey, parliamentary sovereignty, along with all other constitutional conventions, had only “one ultimate object”: to ensure that parliament “shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the State — the majority of the electors or (to use popular though not quite accurate language) the nation.” The parliament at Westminster, he wrote

is, from a merely legal point of view, the absolute sovereign… But if Parliament be in the eye of the law a supreme legislature, the essence of representative government is, that the legislature should represent or give effect to the will of the political sovereign, ie of the electoral body, or of the nation.

Accordingly, said Dicey, the ultimate purpose of all constitutional conventions must be “to secure harmony between the action of the legislative sovereign and the wishes of the political sovereign” or, more simply, “to secure the conformity of Parliament to the will of the nation.”

It was on this basis that Dicey explained the precedents of 1784 and 1834, though perhaps with some rewriting of history. For Dicey, what was significant in 1784 was not that George III had a personal preference for Pitt as prime minister but that he “believed that the nation did not approve of the policy pursued by the House of Commons.” Similarly, what was significant in 1834 was not that William IV preferred Peel to Melbourne but his “belief that the House of Commons did not represent the will of the nation.” The emphasis is on perceptions of public sentiment rather than on personal preference, and on policies, not on personalities.

Thus, for Dicey, what justifies an appeal to the country is not that the monarch prefers a particular individual as prime minister, nor even a belief that a majority of electors have a similar preference. What justifies such an appeal is a belief that the legislative body no longer reflects the wishes of the people:

[T]he reason why the House can in accordance with the constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.

On this basis, since the outcome in 1784 proved that George III had in fact correctly perceived and responded to “the wishes of the nation,” Dicey concluded “without hesitation” that his appeal to the “sovereignty of the people” was fully “in conformity with the principles of the constitution as they are now understood”:

No modern constitutionalist will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists… [His action] affirmed decisively the fundamental principle of our existing constitution that not Parliament but the nation is, politically speaking, the supreme power in the State.

The position in 1834 was less clear. Again Dicey interpreted the King’s intervention as based on his belief that the House of Commons no longer reflected electoral opinion; but in this case the belief proved to be wrong. The ensuing election showed that the tide was turning in favour of Peel and his Conservative Party but had not yet turned far enough: contrary to the King’s expectations, Melbourne and the Whigs were returned. But as Dicey saw it the King’s mistake was merely a mistake of fact:

The belief itself turned out erroneous, but the large minority obtained by Peel, and the rapid decline in the influence of the Whigs, proved that, though the King had formed a wrong estimate of public sentiment, he was not without reasonable ground for believing that Parliament had ceased to represent the opinion of the nation. Now if it be constitutionally right for the Crown to appeal from Parliament to the electors when the House of Commons has in reality ceased to represent its constituents, there is great difficulty in maintaining that a dissolution is unconstitutional simply because the electors do, when appealed to, support the opinions of their representatives. Admit that the electors are the political sovereign of the State, and the result appears naturally to follow, that an appeal to them by means of a dissolution is constitutional, whenever there is valid and reasonable ground for supposing that their Parliamentary representatives have ceased to represent their wishes.

Thus Dicey concluded that, regardless of the outcome, a crown “appeal to the country” is constitutionally justified so long as it is based on “reasonable ground” for believing that a majority of electors want a change.

Whether his requirement of “reasonable ground” is necessary, and how such a requirement could be tested, remains unclear. It might be thought to be sufficient that the relevant belief is sincerely held. It might also be said that, in any event, a dissolution is justified by the fact that the end result, whichever way it goes, is a lower house reflecting the views of a majority of voters, and is therefore ultimately a reaffirmation of popular sovereignty. (But, of course, this last argument has sometimes been used to defend Kerr’s premature and partisan action in 1975.)

In his influential book on The English Constitution, first serialised in 1865–67 (twenty years earlier than Dicey’s work), Walter Bagehot had also recognised the possibility of an “appeal to the country,” but had argued that — at least in the United Kingdom — such a power should no longer be exercised. He conceded that, especially in other parts of the Empire, it might happen that an elected assembly “cannot be induced to maintain any administration,” but instead “shifts its selection now from one Minister to another Minister, and in consequence there is no government at all.” An effective party system might reduce those risks, but “itself tends to aggravate party violence and party animosity.”

Besides, wrote Bagehot, such a parliament must have its own “peculiar prejudices” and “peculiar interests,” and might “pursue these in opposition to the desires, and even in opposition to the well-being of the nation.” In such a context he saw “appeal to the country” as potentially “the regulating wheel of our Constitution”:

It does not impair the authority of Parliament as a species, but it impairs the power of the individual Parliament. It enables a particular person outside Parliament to say, “You Members of Parliament are not doing your duty. You are gratifying caprice at the cost of the nation. You are indulging party spirit at the cost of the nation. You are helping yourself at the cost of the nation. I will see whether the nation approves what you are doing or not.”

Moreover, Bagehot saw powerful arguments against leaving the timing of an election to the existing prime minister:

He will temporize; he will try to give a seemly dress to unseemly matters; to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. He will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. The intervention of an extrinsic, impartial and capable authority — if such can be found — will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly.

Nevertheless, at least in the United Kingdom, Bagehot concluded that the power to initiate a new election should ultimately be vested in the prime minister rather than in a hereditary monarch, whose capacity for sound political judgement was likely to be too unpredictable. Indeed, he thought that the royal interventions in 1784 and 1834 had both been misjudged. In 1784 both the King and the electorate had been mistaken: if the previous Fox–North coalition had been allowed to remain in office, “years of bloodshed might have been spared.” (In fact Bagehot’s grasp of history here appears uncertain: the American war of independence had ended in 1783.) And in 1834 William IV was right to perceive that “the English people were wavering in their allegiance to the Whigs,” but his premature intervention “impeded the reaction instead of aiding it.” It succeeded only “in hurting the party it was meant to help.”

Ironically, Bagehot thought the case for a continuing power of crown intervention was stronger in other parts of the Empire, where the holders of vice-regal authority — governors and governors-general — could be seen as ideal candidates for the role of deus ex machina:

They are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial…; they are sure not to participate in the selfish desires of any colonial class or body… A colonial governor is a super-Parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local Parliament, even if not above it.

It was clear that Bagehot attributed these admirable vice-regal virtues to the fact that those who possessed them were Englishmen, sent out to a far-flung Empire for a limited period, and looking forward to returning home. And in the end he thought the virtues he had sung were outweighed by the other consequences of a temporary absence from home. But clearly today’s vice-regal authorities are not subject to Bagehot’s negative view of the expatriates of his time, while the virtues that he ascribed to them may still be present among those in office today.

In any event, as the death throes of the Liberal Party of Australia escalate into increasing chaos, one cannot help thinking that Dicey’s view of the constitutional value of a continuing power of “appeal to the country” was right. It may be too much to predict that a majority of electors would now prefer a Labor government; but it seems beyond reasonable doubt that a majority of electors now want a change. •

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