The fact that the government of the day must retain the confidence of the House of Commons is the constitutional principle which determines the relationship between Parliament and Government. The Government’s authority to govern is dependent on maintaining the confidence of the House of Commons. This principle remains fundamental to our system of Parliamentary democracy. By convention the confidence of the House has been demonstrated and tested through motions and votes of confidence of the House of Commons.
The purpose of the Fixed-term Parliaments Act 2011 (“the Act”) was to establish fixed five-year election cycles and make provision for early general elections to be called. Therefore, general elections now only occur, and early elections can only be brought about, under the Act. The Act removed the power of the Sovereign to dissolve Parliament, and with this the ability of the Prime Minister to call a general election at a time of their choosing or following a vote of no confidence in the House of Commons.
The Act changed the mechanisms by which an early general election can be brought about. Section 2 of the Act provides for two means by which the House of Commons can bring about an early general election. Section 2(1) allows the House of Commons to call a general election if at least two thirds of all members vote (434 in the current House) in favour. Section 2(3) established that a general election can be brought about following a vote of no confidence. If the House passes the motion “That this House has no confidence in Her Majesty’s Government”, a 14-day period begins, and at the end of this period if the motion “That this House has confidence in Her Majesty’s Government” is not passed a general election will be called.
Section 2 establishes the exact form and wording of statutory motions which engage the provisions of the Act, meaning that only a no confidence motion as set out in the Act can bring about a general election.
The Act provides no guidance on what occurs during the 14-day period following an Fixed-term Parliaments Act 2011 no confidence motion being passed. As the Clerk of the House told us, what occurs during this period is a matter politics, and not of procedure. Evidence to this inquiry and the Cabinet Manual set out that the Prime Minister would be expected to continue in office unless someone else could command the confidence of the House. If someone else could command the confidence of the House, the Prime Minster would be expected to resign. Not doing so would risk drawing the Sovereign into the political process, something the Cabinet Manual is very clear it intends to avoid. At any point during this period, a motion of confidence in Her Majesty’s Government under the Fixed-term Parliaments Act 2011 could be put down and that that would prevent the election. After 14 days a general election would automatically follow.
Before the Fixed-term Parliaments Act 2011 was enacted, confidence votes could be either a motion clearly expressing no confidence in the Government, or a motion expressing confidence in the Government, or the confidence issue could be attached vote on a substantive matter. If a Government lost any such vote of confidence, the expectation was that the Prime Minister would either resign or ask the Sovereign for a dissolution of Parliament and a general election. Confidence motions of this type can no longer lead directly to a general election. The option of dissolution is no longer available to a Prime Minister without first satisfying the provisions of the Act.
Some have expressed the view that the mechanism for bringing about an early general election provided by Section 2(3) of the Fixed-term Parliaments Act 2011 has superseded the pre-existing conventions around the confidence of the House in the Government. While it is correct that only by the statutory provisions of the Act can a motion of no confidence lead to an early general election, this has in no way affected the ability of the House to express no confidence in the Government through other means. Outside the terms of the Act, if the House were to express no confidence, unless that authority could be restored, the Prime Minister would be expected to give notice that he or she will resign, but only when he or she is in a position to recommend to the Sovereign an alternative person to form a new administration. In the event that no alternative person can be found, it remains available to the House to bring about an early general election under section 2(1) of the Act.
Published: 11 December 2018