13 September 2019

Legislation designed to provide stability is now contributing to confusion about how the Commons determines when it has confidence in a government, says Dr Catherine Haddon.

The prime minister wants a general election. The leader of the opposition does too – just not at the same time. Boris Johnson accuses Jeremy Corbyn of cowardice; Corbyn accuses Johnson of “playing disingenuous games”. This had led to a deadlock. Breaking this deadlock will partly depend on the question of whether the House of Commons has confidence in the government – and what can happen if it does not.

The Fixed-term Parliaments Act has bred confusion about how confidence is demonstrated

Becoming law in 2011, the Fixed-term Parliaments Act’s purpose was to take the power to call a general election away from prime ministers and put it into the hands of Parliament – and provide some guarantee of stability for the 2010–15 Conservative–Lib Dem coalition. But its provisions are about triggering an early election. On the question of confidence more generally it is silent.

The Act causes complications for both opposition and the government. For the opposition, the Act helps cement in statute its right to call for a motion of confidence in the government – though they also still rely on conventions to ensure the government provides an early vote.

The Act‘s provisions also allow a government to be replaced without an election, but any alternative government still has a lot of work to do if it is to take office. If an incumbent government loses an FTPA vote of confidence, a new administration can be formed but then needs to win a second vote of confidence within a 14-day period. To win that second vote of confidence, a prime minister must already have been appointed by the Queen – but to be appointed, that prime minister first needs to persuade Her Majesty that he or she would be able to command confidence. That does not need to happen through a formal parliamentary procedure.

In the current circumstances this means that tabling an FTPA confidence motion at the end of October would be a risk for the opposition. If they fail to form a new government within the 14-day FTPA timetable, then the risk of no deal will continue even if an election is triggered.

The FTPA has also caused a major headache for the government. The prime minister no longer has the power to unilaterally decide to go to the country and this affects what happens if a prime minister says a vote is a confidence matter. Boris Johnson declared that the vote on legislation to force an extension to the Brexit deadline would be a “confidence matter”. But as he did not choose to resign and could not get two thirds of MPs to agree to an election, the only sanction available to him was to remove the whip from dissenting MPs. This means we now have a government in office but one which lacks the ability to get its way in Parliament. For the short-term, this can be seen as a political battle of wills, but if the situation continues longer-term then the country is stuck in deadlock.  

The Fixed-term Parliaments Act does not mean that other kinds of confidence motion no longer exist

The Fixed-term Parliaments Act has led people to believe that other kinds of confidence motion no longer matter. In November 2018, the then Leader of the Commons Andrea Leadsom said that the FTPA "has replaced previous conventions and it has codified how motions of no confidence operate in future".

It is accurate that the FTPA is the only statutory form of confidence motion. But as the Public Administration and Constitutional Affairs Select Committee has said: "If the House of Commons resolves, by whatever means, that it has no confidence in Her Majesty’s Government, this removes the incumbent administration’s authority to govern". This remains a central tenet of how our system of government and Parliament works.

The cabinet secretary, giving evidence to Parliament in September 2019, acknowledged the effect of non-FTPA votes of confidence or a Queen’s Speech debate were "unclear", but threw it back to politicians to resolve what should happen if a government lost confidence by another means: "a vote of no confidence that is not a statutory vote of no confidence has political effect and it is then for the political system to determine what follows from that". In other words, just as before, the situation is dependent on whether political actors adhere to conventions. But it is still present.

The future of the Fixed-term Parliaments Act needs to be considered

Fixed terms have lots of benefits, and there are good arguments to be made that the ability to call an election should stay in the hands of Parliament. But while the architects of the FTPA hoped it would provide certainty in uncertain times, its biggest contribution, nearly a decade on, has been to produce uncertainty and frustration.

With both government and Parliament unsure how to interpret the FTPA, the next Parliament will need to consider how to improve this increasingly troublesome piece of legislation. The Act is due for review next year. If a majority government is returned, it may simply attempt to repeal – though this will raise the legal question of whether a Royal Prerogative power can be re-imposed. More sensible might be to re-jig or replace the FTPA, while thinking about what related issues need tackling. Doing this properly will take time. The danger is that changing the FTPA in reaction to the current crisis will create more problems than it solves.

While the FTPA has changed the tactical calculations, it has not fundamentally altered the importance of confidence. Given Parliament’s current ascendancy, the reality is that it could, if it wanted to, use a non-FTPA motion of no confidence. If the government refused to schedule a vote, it seems likely the current Speaker would facilitate one. If the government then refused to recognise the result, it is likely that the monarch would be dragged into the argument. If her Parliament has lost confidence in the government then, no matter how that loss of confidence is worded, it seems inconceivable that the Queen would ignore that clear message.

Comments

You appear to suggest that a government might be able to ignore the loss of a non-statutory vote of confidence, and continue to govern. But would not the terms of the civil service code then make continuation in government difficult? Would not civil servants be left in a position in which the authority of ministers to issue instructions to them would have become questionable? In which case there would be a surge of requests for written instructions before accepting what ministers told them to do, and then no doubt judicial challenges?

I believe the assertion made her that "The Act‘s provisions also allow a government to be replaced without an election" is completely wrong.
Below is the relevant text of the act.
(3)An early parliamentary general election is also to take place if—
(a)the House of Commons passes a motion in the form set out in subsection (4), and
(b)the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).
(4)The form of motion for the purposes of subsection (3)(a) is—
“That this House has no confidence in Her Majesty’s Government.”
(5)The form of motion for the purposes of subsection (3)(b) is—
“That this House has confidence in Her Majesty’s Government.”

Her majesty's government throughout these steps is the one in office before the motion of no confidence. It cannot be replaced without a general election.