Boris Johnson has spent the past week hinting that he’d be prepared to defy an Act of Parliament that would force him to request a third extension to the U.K.’s exit from the European Union. Now, he’s challenging the queen to a constitutional duel. The fate of an Australian prime minister 44 years ago suggests that could be a fatal mistake.

The British prime minister will refuse to leave office if he loses a vote of no confidence in Parliament, Britain’s Sunday Times newspaper reported at the weekend. His office is preparing legal advice that the monarch’s constitutional powers wouldn’t permit her to sack him, the Sun newspaper reported Wednesday.

That reasoning may be legally flawed, as Charlie Falconer, the former cabinet minister in charge of Britain’s courts has argued. But the high-stakes strategy may still seem to have merit. Britain’s constitutional monarchs have been wary of intervening in politics since the 17th century, when one of Queen Elizabeth’s predecessors was beheaded and another exiled to France for interfering with parliamentary business. By squatting in office, perhaps Johnson could jam the gears of politics until Oct. 31, when the United Kingdom will leave the European Union without a deal unless an extension or withdrawal agreement has been concluded.

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At the same time, the Australian precedent ought to worry him.

In 1975, that country’s prime minister, Gough Whitlam, also found himself in a deadlock. Following the death of a senator in his Labor Party, he lost the ability to pass appropriation bills through the upper house and fund the government. Rather than follow Whitlam’s preferred solution of a partial Senate election, Governor General John Kerr – the queen’s official representative in Australia – dismissed him and appointed the leader of the opposition, Malcolm Fraser, as a caretaker.

There was a bit more to the decision, though. As a condition of Fraser’s appointment, Kerr required him to first guarantee the passage of the appropriation bills, and then call fresh elections. In other words, Fraser was required to end the immediate crisis so that an election wouldn’t take place against the backdrop of a national emergency.

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Commonwealth countries tend to look to each other for legal precedents, especially in circumstances where there are few domestic analogies.(1) That makes the manner of Whitlam’s dismissal relevant to the Brexit situation now. 

For one thing, it underlines the fact that the choice of prime minister ultimately belongs to the monarch. In a scenario where Johnson refuses to leave office after losing a vote of no confidence, he might hope that bickering among MPs would prevent parliament selecting a figure to serve as caretaker prime minister.

The Whitlam example suggests that there’s no need for the Crown to be so quiescent. If a prime minister loses the confidence of Parliament and has no realistic prospect of regaining it ahead of a looming deadline on the scale of Brexit, the queen could suggest whichever caretaker has the best prospect of commanding a majority – and even require that leader to take whatever limited actions are needed to avert the immediate crisis.

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That sort of process may indeed be the best way to apply the U.K.’s constitutional rules that Johnson hopes will bind the queen’s hands, as Falconer wrote: 

One way to fulfill this would be to appoint a middle-of-the-road figure (such as Speaker of the House of Commons John Bercow) as caretaker, and require that he seek an extension of the Article 50 period for leaving the European Union to January 31 before calling fresh elections.

Such a move would likely annoy supporters of Labour Party leader Jeremy Corbyn, who think he should have right of first refusal, but that’s a risk worth taking. The odds of the U.K. exiting the EU without a deal(2) are almost certainly higher if parliament gets bogged down on inter-party negotiations about who should lead a caretaker government. By directly choosing a successor to Johnson, that process would be short-circuited, forcing Brexit-leaning Labour MPs to actively back a vote of no confidence to remove the caretaker rather than allow parliamentary inertia to get the blame.

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Such a situation would hardly be the end of the current drama. It’s anyone’s guess what result would emerge from fresh elections in the U.K., given the highly unpredictable results of ballots in 2015 and 2017; the way that Brexit has scrambled the polling positions of the major parties; and the fact that 108 out of 642 voting members of the Commons are minor-party or independent MPs.

Still, it would at least cut the wires on the ticking constitutional time bomb set to explode Oct. 31 and give the people a final opportunity to elect a government capable of fashioning a more lasting relationship with the EU. If Johnson tries to force the monarch’s hand, he shouldn’t be surprised to find a royal flush laid down against him.

(1) The last British prime minister to be dismissed was Lord Melbourne, in 1834, over King William IV’s dislike of his reformist cabinet -- grounds that would now be considered grotesquely anti-democratic.

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(2) Given the need to secure the backing of rebel former Conservative MPs, Corbyn’s odds of commanding a majority in the Commons are almost certainly worse than those of a more centrist unity candidate.

To contact the author of this story: David Fickling at dfickling@bloomberg.net

To contact the editor responsible for this story: Patrick McDowell at pmcdowell10@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

David Fickling is a Bloomberg Opinion columnist covering commodities, as well as industrial and consumer companies. He has been a reporter for Bloomberg News, Dow Jones, the Wall Street Journal, the Financial Times and the Guardian.

©2019 Bloomberg L.P.

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