Written evidence from Dr Andrew Blick[1] (SRH 08)

 

Public Administration and Constitutional Affairs Committee

Status of Resolutions of the House of Commons inquiry

 

  1. During my oral evidence session on 23 October 2018 the subject of expressions of confidence by the House of Commons in the government (or the lack thereof), and their relationship with the Fixed-term Parliaments Act 2011 and the Cabinet Manual arose.

 

  1. Section 1 of the 2011 Act prescribes a normal parliamentary term of five years. Section 2 of the Act creates two procedures by which an early General Election can be triggered. One of them involves the House of Commons passing (by a simple majority) a motion ‘That this House has no confidence in Her Majesty’s Government.’ A 14-day period then commences at the end of which an early General Election is initiated, unless the Commons passes a motion ‘That this House has confidence in Her Majesty’s Government.’ Section 3 provides that there are no means by which Parliament can be dissolved other than those set out in the Act: in other words, the Royal Prerogative of dissolution is seemingly abolished.

 

  1. Prior to the Act being passed, confidence was non-statutory in nature and a matter of convention. I now consider the implications and significance of the Act for confidence.

 

  1. Traditionally, confidence was something that could be withdrawn from (or confirmed in) the government of the day by the Commons through voting on a motion to such effect, but there was no precise terminology required. A government could also hold that it regarded a particular vote on a matter it deemed fundamental to its programme as a matter of confidence. In either instance, if the government was defeated, it – or the Prime Minister at its head – was faced with two options: to resign, or to seek a dissolution.

 

  1. The latter of these two possible courses of action is no longer available in the same way. Now a dissolution must take place if a ‘no confidence’ motion as set out in the Act is passed, and not reversed within 14 days, again using the exact terms of the Act.

 

  1. Two questions then arise. First, are there means, without the terms of the Act, by which the Commons can be deny (or confirm) confidence in the government? Second, if confidence is removed through such non-statutory means, if they are available, what are the consequences?

 

  1. A consideration of the Cabinet Manual, published in final form shortly after the 2011 Act received Royal Assent, is useful in this regard. While it should not be treated as definitive, its sets out the executive view of conventions and other constitutional rules.

 

  1. The manual does not expressly deal with all the consequences of the 2011 Act for confidence, but makes a series of statements implying that confidence is not entirely encapsulated by the 2011 Act and retains a wider existence. Paragraph 2 in the Introduction, for instance, contains the statement that: ‘The government of the day holds office by virtue of its ability to command the confidence of the House of Commons.’ It is notable that this first reference to confidence in the manual does not link it to elections or the 2011 Act at all, suggesting a more general role for it as a basis for government.

 

  1. In Chapter 2, ‘Elections and government formation’, paragraph 2.7 states that ‘The ability of a government to command the confidence of the elected House of Commons is central to its authority to govern. It is tested by votes on motions of confidence, or no confidence.’ The manual then refers the reader to a subsequent paragraph, 2.19, dealing with ‘fixed-term Parliaments and votes of no confidence.’ However, it does not state that confidence can be conferred or denied only within the terms of the 2011 Act. Moreover, paragraph 2.7 goes on to note that ‘Commanding the confidence of the House of Commons is not the same as having a majority or winning every vote.’ It could at this point have stated that confidence only existed as defined within the 2011 Act, if the authors felt that such was the case, but does not.

 

  1. The next paragraph, 2.8, discusses the circumstances in which a ‘Prime Minister resigns on behalf of the Government’. In that eventuality, the manual states, ‘the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.’ Once again, commanding the confidence is not expressly described as being able to win a vote within the terms of the 2011 Act. In the period since the Act was passed, when a new Prime Minister, Theresa May, was appointed in 2016, without a General Election taking place, no confidence vote process as defined by the Act occurred – indeed it would have been curious had it done so. May can be assumed to have successfully commanded the necessary confidence without need for such a procedure, suggesting that it continues to exist in a form either separate from or wider than the 2011 Act.

 

  1. The manual continues in the vein of referring to confidence in ways that do not seem to involve the use of the processes of the 2011 Act (see: paragraph 2.9). Paragraph 2.12 explains that, following a General Election that produces no overall winner ‘An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.’ It seems unlikely that the testing of confidence in such circumstances would involve motions within the terms of the Fixed-term Parliaments Act. Confidence, therefore, can be tested by other means.

 

  1. The manual finally reaches a discussion of the confidence provisions of the Act in paragraph 2.19. The Act itself is silent on what should happen during the 14-day period following an initial ‘no confidence’ motion within the terms prescribed in the statute. The manual envisages that during this time ‘an alternative government can be formed from the House of Commons as presently constituted, or the incumbent government can seek to regain the confidence of the House.’ The idea that the same government, having lost the confidence of the Commons, can regain it, appears novel; but the proposition of a new administration taking office is less so. But could a sitting Prime Minister, having lost an initial confidence vote under the Act, block the formation of a successor government by refusing to resign and waiting for the 14-day period to elapse, leading to a General Election? Paragraph 2.19 of the manual seems to seek to preclude this course of action by asserting that: ‘The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.’ If this statement is intended to apply to the specific circumstances following the loss of a confidence motion under the 2011 Act, it is odd. Surely a lack of confidence on the part of the Commons has already been demonstrated by defeat on such a vote? How then would this lack of confidence become ‘clear’ in a way that it was not already? However, this statement makes more sense if held to have effect more generally. At any given time, a government or Prime Minister that have lost the confidence of the Commons should resign if a viable alternative administration exists. The 2011 is not directly involved and confidence continues to have non-statutory force in this respect.

 

  1. Paragraph 2.19 of the manual also states that ‘Other decisions of the House of Commons which have previously been regarded as expressing “no confidence” in the government no longer enable or require the Prime Minister to hold a general election.’ This wording does not preclude that these ‘Other decisions’ could still represent an absence of confidence in the government, creating in turn obligations or rights of some kind. It simply confirms the statutory position: that requesting a dissolution from the monarch is no longer an option for prime ministers who judge that they have lost the confidence of the Commons.

 

  1. In such circumstances, the options available would include: resignation by the Prime Minister concerned, with a different individual replacing them at the head of an administration of the same complexion; resignation of the Prime Minister on behalf of the government, with a government of a different complexion led by a different Prime Minister replacing it; or – perhaps, though it would probably be a controversial event – resignation by the Prime Minister on behalf of one government, with the same person re-appointed premier at the head of a government of a different complexation (perhaps a coalition replacing a single-party government, for instance). (Similar principles might apply during the 14-day period following a government losing a vote of confidence within the terms of the 2011 Act, if a Prime Minister felt that their present government could not reverse this decision within the statutory period.)

 

  1. My conclusion is that it is still possible for the Commons to express its confidence or otherwise in a government without using the precise terms prescribed in the 2011 Act. It can do so either through using wording that refers to confidence but differs from that contained in the Act; or through voting on a measure that the government deems to be a matter of confidence because it is integral to its programme. What has changed since 2011 is that, if the government loses such a vote, the Prime Minister is no longer able to respond by requesting a dissolution from the monarch, who seems to have been stripped of this particular prerogative power. The options open to a Prime Minister in this circumstance would seem to be to resign (with possible consequences as discussed in paragraph 14 above), or perhaps seek an early General Election using one of the two options provided by the Act – a confidence vote with 14-day period of possible reversal, or at least two thirds of all MPs, including vacant seats, supporting a motion for an election.

 

  1. These observations are based on my interpretation of existing practice as overlain by the 2011 Act and Cabinet Manual. It is possible that, in future, a practice might develop of passing motions that could once have been regarded as pertaining to confidence (that fall without the terms of the Act), which prime ministers do not regard as requiring their resignation should they lose them. I would suggest that, while MPs might perceive such a practice as a useful means of censuring a government, perhaps of their own party, without bringing it to an end, it may have an unintended consequence. The Commons may subsequently find it has lost an important part of a mechanism that ensures that it can, if it chooses, remove a government – a fundamental component of democracy in the UK.

 

 

November 2018

[1] Dr. Andrew Blick, Director, Centre for British Politics and Government, King’s College London