Written evidence from Petra Schleiter[1] (SRH 04)

 

Public Administration and Constitutional Affairs Committee

Status of Resolutions of the House of Commons inquiry

 

 

No-confidence and confidence motions under fixed and flexible parliamentary terms:

The UK in comparative context

 

 

 

Executive summary

 

 

Note: Key passages that directly address the committee’s brief are highlighted in bold type.

 

Introduction

1.      The confidence relationship between parliament and the executive is a central and constitutive feature of parliamentary democracy. It ensures that the executive is responsible to the legislature. It also structures bargaining between a government and legislators in highly consequential ways. Institutionally, it is rooted in two distinct procedures – the parliament-initiated vote of no confidence and the executive-invoked vote of confidence. The ability of parliament to propose a vote of no confidence engages the threat of voting the government out of office and forces the executive to minimally satisfy the preferences of a legislative majority (e.g., Mezey 1979, Polsby 1975). The vote of confidence procedure, in contrast, enables the prime minister or cabinet to put the government’s survival at stake in negotiating with parliament, and can serve as a powerful bargaining chip (Huber 1996; Diermeier and Feddersen 1998). Election calling rules (i.e., constitutional provisions for fixed or flexible parliamentary terms) affect the political consequences of both types of procedures.

 

A.   Definition and status:

What qualifies as a no-confidence/confidence motion?

A.i.  Comparative context

 

2.      In the vast majority of parliamentary democracies, confidence and no-confidence procedures are constitutionally defined. Some constitutions also require a specific wording of these motions. Alternatively, the wording of these motions is defined in the parliamentary standing rules. In the discussion that follows, I refer to formal no confidence/confidence motions when a motion conforms to the wording and procedures set out in a constitution or the standing rules.

3.      A formal no confidence motion, initiated by parliament, has two defining features: (i) it is designed to terminate the government, and (ii) its wording explicitly refers to no confidence or censure. Often a motion of no confidence elaborates on the causes of the loss of confidence, making reference to a particular policy or issue.

4.  Formal no confidence motions, if carried, require the termination of the government. This distinguishes them from other types of parliamentary votes. The following types of motions, for instance, do not constitute formal no confidence votes: (i) motions that use the terms “no confidence” or “censure”, but explicitly require some outcome other than government termination, and (ii) government defeats in other types of motions – say defeats of a government programme, major policy defeats, or resolutions of parliament that deplore government actions – that a government may choose to interpret as de facto votes of no confidence. Such defeats do not constitute a formal vote of no confidence because they do not require the government to lay down its powers. In contrast, a government defeated by a formal no confidence vote has no choice – it cannot carry on in power.

5.      A formal confidence motion, initiated by the government, is worded to refer explicitly to confidence in the government or uses some equivalent form of words and engages the survival of the government. It may for instance take the form “this House/Parliament has confidence in the Government.” Often a confidence motion will be attached by the government to a particular vote on a policy or issue. In doing so, the government is invoking a threat: should it be defeated by its backbenchers or the parties that lend it support, the government’s resignation or (in some instances) an early election will result. To the extent that backbenchers and parties supporting the government fear this outcome, the prime minister and cabinet can use the confidence procedure to extract policy compromise and discipline from their supporters.

6.      Again, there is a distinction between formal confidence motions, which, if rejected, require the termination of the government, and other types of parliamentary votes. For example, governments may request parliamentary resolutions to support their programme or a particular policy without making explicit reference to confidence. These are not formal confidence motions because, if rejected, the government may amend its programme or change its policy instead of resigning. Of course, governments may choose to treat defeat on such motions de facto as a failed confidence vote. However, this is a matter of discretion. In contrast, when parliament rejects an explicit motion of confidence in the government, the incumbent has no choice but to step down.

A.ii.  The UK: definition and status of no-confidence/confidence motions

 

7.      In the UK, given the absence of a codified constitution, the distinction between formal no confidence/confidence motions and other motions is less well delineated. According to Kelly (2013: 2), until the FTPA, whether a motion in the House of Commons was a motion of confidence was a matter of convention. In effect, a vote on an issue was to be considered a matter of confidence, engaging the government’s

survival in office, if that was signalled before the vote took place.1

8.      The FTPA provides a formal definition and unambiguous wording for no confidence motions that takes the form “That this House has no confidence in Her Majesty’s Government.”

9.      The Committee’s brief asks: “What status do motions of no confidence have if they do not conform to the terms of the Fixed Term Parliaments Act 2011?” My understanding is this: Notwithstanding the Act, by convention, it is still the case that a vote on any issue can be considered a matter of confidence, engaging the government’s survival in office, provided this is signalled before the vote takes place. A government that loses a vote that has been declared to be a matter of confidence cannot carry on in office.

10.  Under the FTPA, when a government loses parliamentary confidence, the authority to decide the next step reverts to parliament. Parliament (rather than the defeated

 

1  Kelly (2013) SN/PC/2873.


government) chooses whether to form an alternative government or to trigger an early election.

B.  Political purpose and institutional variation of confidence and no- confidence procedures

11.  In order to understand the implications of changes to no confidence and confidence motions in the UK it is helpful to gain a comparative understanding of what such procedures are designed to achieve politically and how they vary. Across developed parliamentary democracies both no confidence and confidence procedures vary tremendously. This section gives an overview of that constitutional variation and sketches the reasons for it.

12.  Vote of no confidence procedures generally balance two political aims: (i) ensuring that the government is accountable to parliament, while (ii) guaranteeing a modicum of government stability. While the accountability of the cabinet to parliament is a defining and constitutive feature of parliamentary democracy, political systems differ in the extent to which they balance this concern with a desire to ensure a degree of government stability. As a result, the procedures for no confidence votes differ. The most fundamental difference runs between the ordinary and constructive vote of no confidence and I discuss this distinction in more detail below.

13.  In the UK, the conventions that underpin the vote of no confidence procedure include no special restrictions to safeguard government stability. Parliament has the power to express no confidence in the government by a simple majority of those present and voting without restrictions. The FTPA does not alter this. The Act does, however, affect the consequences of a government defeat in a no confidence vote. As the next section explains, the political effect of this change is to enhance government accountability to the sitting parliament.

14.  Vote of confidence procedures are a tool that the government can deploy to make its agenda prevail in parliament. They are part of a wider family of restrictive procedures and agenda setting tools that enable governments to steer their programme through parliament (Huber 1996). Vote of confidence procedures balance two concerns: (i) ensuring that the government can effectively progress its agenda, while (ii) limiting its ability to depart from the wishes of parliament.

15.  Democracies strike the balance between these goals in different ways, which gives rise to extensive variation in vote of confidence procedures. For instance, the power to initiate a vote of confidence may lie with the prime minister or cabinet collectively, the threshold of legislative support required to carry a motion may vary, and the costs that the executive may impose on legislators, should they fail to support the proposal may vary.

16.  Variation along all of these dimensions shapes the bargaining power that the executive can derive from invoking a confidence vote.

17.  In the UK, the FTPA introduces no changes to the power to propose a vote of confidence or the majority threshold required to support it (a simple majority of those present and voting). However, the Act changes the implications of a government defeat in a confidence vote. The government can no longer invoke the threat of an early election by designating a vote as a matter of confidence. As the next section explains, the political effect of this change is to reduce the bargaining power of government vis-à-vis parliament.

C.  The consequences of a government defeat in a no confidence/confidence motion

18.  In a parliamentary democracy, a government that has lost the confidence of parliament cannot remain in office. Some constitutions simply require the resignation of the government, others its replacement, and some constitutions additionally envisage a process that may lead to early elections. This section reviews comparative variation in the consequences of government defeats on matters of confidence and their political implications before placing the UK’s procedures in comparative perspective.

C.i.  The consequences of successful no confidence motions, comparative context

 

19. Turning first to no confidence motions, the consequences for government resignation or replacement vary between ordinary no confidence votes (which simply require the government to lay down its powers), and a constructive no confidence votes (which require the formation of an alternative government).

 

“Under ordinary no confidence procedures a cabinet can be forced out  of office simply by the majority of (voting) MPs voting against it. In contrast, constructive no- confidence rules require the election of a new prime minister in order to replace the old one. The latter procedure is obviously more demanding. It is designed to prevent negative voting alliances (the members of which would not agree on a new cabinet) from overturning the government. … [T]he constructive vote of no confidence was first introduced in the (West) German constitution in 1949 and has since then been adopted in a number of countries (including Belgium, Hungary, Israel, Poland, and Spain) with the desired effect of boosting government stability” (Müller and Sieberer 2015: 318-320).

 

20.  Likewise, access to early elections following government defeat though a no confidence motion varies. Because parliamentary democracy rests on the principle that voters delegate to parliament the power to form a government, there is a normative expectation under most constitutions that parliament will attempt to form a new government after a vote of no confidence (indeed, the constructive vote of no confidence makes that normative expectation binding). However, nearly all parliamentary democracies allow access to early elections, should parliament prove unable to form or support a new government in power (i.e., when government formation fails within a set time period or after a specified number of attempts, or if parliament topples a succession of governments within a given timeframe through no confidence votes). Early elections are therefore typically envisaged as a gridlock resolution device: Voters are asked to elect a new parliament only if the existing legislature proves incapable of forming or supporting a new government. Under those conditions, governments can typically

request the dissolution of parliament subject to parliamentary and/or the head of state’s assent (Goplerud and Schleiter 2016).

21.  The constitutions of some constitutional monarchies and countries whose constitutional choices were influenced by the UK (i.e., UK up to 2011, Australia, Denmark, Canada, Ireland, New Zealand, Sweden 1971), are exceptions to this rule because they grant the prime minister full discretion to call early elections. Under these constitutions, a parliament cannot carry a motion of no confidence without risking dissolution by the prime minister against its will.

22.  Under these constitutions, early elections are not only a gridlock resolution device, but the scheduling or threat of an early election is also a tool that can be used by the incumbent government for partisan advantage in legislative bargaining.

23.  This weakens the government’s accountability to the sitting parliament and enhances the executive’s ability to enact controversial legislation.

 

C.ii.  The consequences of successful no confidence motions in the UK under the FTPA

 

24.  The FTPA changes the consequences of a successful no confidence motion: It places the power to call early elections in the hands of parliament. Therefore, when parliament votes no confidence in the government, it is parliament (rather than the defeated government) that now decides the next step, i.e., whether to form an alternative government or to trigger an early election.

25.  The House of Commons can trigger early elections via two pathways:

(1)   by passing a no-confidence motion worded “That this House has no confidence in Her Majesty’s Government” with a simple majority. This pathway then gives parliament the opportunity to form a new government and if it does not do so within 14 days, early elections are triggered.

(2)   by voting for an early election with an absolute two-thirds majority (434). Under this pathway, the requirement of an absolute two-thirds majority serves to ensure that there is cross-partisan support for an early election and establishes that the opposition is not willing and able to form an alternative government.

26.  Hence, parliament can now carry a motion of no confidence without risking dissolution by the prime minister against its will.

27.  The Committee’s call for evidence asks what relationship motions of no confidence that do not conform to the FTPA have to a motion under the Act calling for a general election. As noted above, my understanding is that by convention, motions that differ in wording from the form envisaged in the FTPA can still be considered matters of confidence, engaging the government’s survival in office, on condition that this is signalled before the vote takes place. If a government loses such a vote, it cannot carry on in office. Whether a successful no confidence vote that does not conform to the wording envisaged in the FTPA results in early elections (rather than the formation of a new government) is now decided by parliament. Early elections are called if parliament supplements the original motion (i) by a vote of no confidence worded in accordance with the FTPA and does not form a new government within 14 days, or

(ii) by a two-thirds majority vote for an early election.

28.  In practice, when parliament intends to pass a no confidence motion with the intention of triggering early elections, it is now likely to use the wording envisaged in the FTPA rather than some alternative formulation.

29.  The Committee’s call for evidence asks “What implications does this have for our understanding of the Act, its effectiveness and how it works?” The Act is effective in that it removes the power to call early elections from the prime minister, exactly as anticipated. This has several political implications for the no confidence procedure:

a.       It takes away from the prime minister the power to dissolve parliament against its will following a no confidence vote.

b.      It gives to parliament (rather than the defeated government) the power to decide next steps after a vote of no confidence (i.e., whether to form a new government or to trigger early elections).

c.       Thereby the Act enhances the vote of no confidence procedure as a tool for parliament to hold government accountable and reduces the government’s opportunities to enact controversial legislation in the face of significant parliamentary opposition.

 

C.iii.  The consequences of failed confidence motions, comparative context

 

30.  Executive initiated confidence motions are a procedural mechanism that enables a government to turn an ordinary vote or piece of legislation into a matter of confidence in order to progress its agenda. The effectiveness of this agenda setting tool depends on the credibility of the threat with which the government can confront parliament and the magnitude of the costs that it can threaten to impose. For instance, a confidence vote procedure that enables the prime minister to make a credible threat of early elections is valuable, because, when the governing majority fears losing office, it can be used “to extract – in policy currency – the majority's censure costs” (Huber 1996: 279). Hence, the bargaining power of prime ministers and cabinets rises in constitutional provisions that raise their ability to threaten a government resignation or early election in the event of a failed vote of confidence.

31.  With respect to the consequences of a failed confidence motion for government resignation, two types of rules can be distinguished in developed parliamentary democracies: those that (i) require the automatic resignation of the government; and those that (ii) require resignation only if parliament expresses confidence in a new government. The less automatic the threat of resignation in the event of a government defeat, the lower the utility of the vote of confidence procedure to the prime minister or cabinet.

32.  With respect to the consequences of a failed confidence motion for early elections, some constitutions simply do not offer a route to dissolution following the event, others allow parliament or the head of state to decide whether and under what conditions an early election may occur.

33.  The exceptions (again) are those countries that grant a prime minister full discretion to call an early election in the event that the government loses a confidence motion. Governments with this power are able to extract significant policy compromise from parliamentary parties that fear early elections. The greater the discretion of a prime

minister to call an early election, the greater the utility of the vote of confidence procedure to the government.

34.  For governments that can credibly threaten to impose substantial costs on legislators, the vote of confidence procedure is a source of extensive bargaining power. It allows executives to exert significant influence in legislative negotiations over public policy (Huber 1996) and attenuates parliamentary involvement in the legislative process (Franchino and Høyland 2009). For instance, if parliament anticipates that a confidence motion can credibly be invoked – i.e., when the motion’s initiation could be agreed, and would be supported by the requisite majority in parliament – then it may choose to pass the government’s original bill immediately, even though it may not have done so in the absence of a vote of confidence procedure. Thus, as Huber (1996: 279) points out, this implies that the procedure need never be invoked in order to give the prime minister (or indeed the cabinet collectively) substantial power to shape final policy outcomes. For the same reason, the power to invoke a vote of confidence raises the ability of chief executives to enact their preferred legislation (Saiegh 2009); promotes voting unity in governing coalitions (Diermeier and Feddersen 1998; Coman 2015); and gives leaders tools to manage the electoral position-taking incentives of coalition partners (and backbench MPs) (Huber 1996).

C.iv.  The consequences of the FTPA for the vote of confidence procedure

 

35.  As we have seen above, the FTPA takes discretion to call early elections out of the prime minister’s hands and places it with parliament.

36.  Lost confidence motions can now only lead to early elections if parliament so decides (i.e., if it supplements the defeated confidence motion by a vote of no confidence that conforms to the FTPA or by a two-thirds majority vote for an early election).

37.  This reduces the potential electoral cost to MPs of voting down the government in a confidence motion and alters the balance of power between parliament and government.

38.  The FTPA weakens the ability of the incumbent to threaten an early election by declaring a vote to be a matter of confidence and limits the range of circumstances in which the prime minister can invoke the vote of confidence to extract legislative compromise and enact controversial legislation.

39.  Based on the comparative evidence, the change in the confidence procedure brought about by the FTPA can be expected to increase (i) parliament’s influence in negotiations with the executive over public policy, and (ii) parliamentary involvement in the legislative process.

40.  By the same token, the changes brought about by the FTPA may render the life of minority and coalition governments marginally more difficult by taking away from the prime minister one tool to (i) manage the electoral position-taking incentives of supply and confidence parties and coalition partners and (ii) encourage voting unity among government supporters on contentious policy issues.

 

October 2018

 

 

 

 

References

Coman, E.E., 2015. Institutions and vote unity in parliaments: Evidence from 33 national chambers. The Journal of Legislative Studies, 21(3), pp.360-389

 

Diermeier, D. and Feddersen, T.J., 1998. Cohesion in legislatures and the vote of confidence procedure. American Political Science Review, 92(3), pp.611-621.

 

Franchino, F. and Høyland, B., 2009. Legislative involvement in parliamentary systems: opportunities, conflict, and institutional constraints. American Political Science Review, 103(4), pp.607-621.

 

Goplerud, M. and Schleiter, P., 2016. An index of assembly dissolution powers. Comparative Political Studies, 49(4), pp.427-456.

 

Huber, J.D., 1996. The vote of confidence in parliamentary democracies. American Political Science Review, 90(2), pp.269-282.

 

Kelly, R. 2013. Confidence Motions. House of Commons Library, SN/PC/2873. Mezey, M.L., 1979. Comparative legislatures. Duke University Press.

Müller, W. and U. Sieberer, 2015. Procedure and Rules in Legislatures, Oxford Handbook of Legislative Studies, eds. S. Martin, T. Saalfeld, and K.W. Strøm

 

Polsby, N.W., 1975. Legislatures. Handbook of political science, 5, pp.257-319.

 

Saiegh, S.M., 2009. Political prowess or “Lady Luck”? Evaluating chief executives’ legislative success rates. The Journal of Politics, 71(4), pp.1342-1356.

 

[1] Petra Schleiter, Professor of Comparative Politics, University of Oxford, Department of Politics and International Relations, and St. Hilda’s College, University of Oxford.

I am a comparative political scientist and have researched fixed and flexible election timing rules and confidence motions in comparative perspective. My publications in this field include:

P. Schleiter and V. Belu. 2018. “Electoral incumbency advantages and the introduction of fixed parliamentary terms in the UK.” British Journal of Politics and International Relations 20(2): 303 –322.

P. Schleiter, and M. Tavits. 2016. “The Electoral Benefits of Opportunistic Election Timing.” The Journal of Politics, 78(3): 836-850.

Goplerud,  M.,  and  P.  Schleiter.  2016.  “An  Index  of  Assembly  Dissolution     Powers.”

Comparative Political Studies, 49(4): 427-456.

P. Schleiter, 2016. “Editorial: How the Fixed-term Parliaments Act Changes UK Politics.” Parliamentary Affairs. 69(1): 1-2.

P. Schleiter and V. Belu. 2016. “The Decline of Majoritarianism in the UK and the Fixed- term Parliaments Act.” Parliamentary Affairs. 69(1): 36-52.

P. Schleiter. 2017. “Did the Fixed-term Parliaments Act fail?” May 4, Medium, https://medium.com/oxford-university/did-the-fixed-term-parliaments-act-fail-f00bdcf7f1c7

G.    Evans and P. Schleiter. “Setting the Agenda: Variation in the Vote of Confidence Procedure and Cabinet Survival in Europe.” Working Paper (unpublished)