The Role of Parliament in the UK Constitution Interim Report The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011 Contents

3The Fixed-term Parliaments Act 2011

9.The main purpose of the Fixed-term Parliaments Act 2011 (FTPA) as set out in the explanatory notes to the Act was to fix the date for parliamentary general elections for the first Thursday in May every five years. The Rt Hon Mark Harper MP, Minister for Political and Constitutional Reform at the time of the passage of the Bill through Parliament, explained that the Act implemented a commitment made in the 2010 coalition agreement between the Conservative Party and the Liberal Democrats to remove the Prime Minister’s power to bring about a general election.12

10.Before the passing of the Act, the power to dissolve Parliament rested with the Sovereign who, by modern convention, would do so only on the request of the Prime Minister. A Prime Minister could ask for dissolution at any time within the five-year period set out in the Septennial Act 1716, as amended by Section 7 of the Parliament Act 1911, which was repealed by the Act. As the FTPA explanatory notes set out, dissolution would now “occur automatically under the provisions of the Act” and the Queen’s “residual power to dissolve Parliament” was removed.13 The latter means that a Prime Minister is no longer able to request the Sovereign for dissolution of Parliament either at a time of their choosing, even following a vote of no confidence. The decision to dissolve Parliament is no longer a matter for the Royal Prerogative. A dissolution is determined by the statutory provisions of the Act.

11.The intention of the Act, Rt Hon Mark Harper MP told us in evidence, was not to change the UK into a political system, such as in the United States of America, where the election date is fixed with no possibility of an early election. The 2017 General Election illustrates his point. He told us that the FTPA sustains the fundamental principle where “the Government have to be able to command a majority in Parliament. If they cannot then an early general election is the proper response to that”.14 In order to allow early elections, Section 2 of the Act provides for two means by which the House of Commons can bring about an early general election. These are explained below and set out in Figure 1.

Section 2(1)

12.Section 2(1) sets out how a general election can be brought about if the House passes the motion “That there shall be an early parliamentary general election”, provided it is carried by a number of votes equal to or greater than two thirds of the number of seats in the House, including vacant seats (434 in the current House).15 This provision was used by the Government to call the 2017 General Election.16

Section 2(3)

13.Under Section 2(3), a general election can also be brought about through a no confidence vote, where the House passes (by simple majority) the motion “That this House has no confidence in Her Majesty’s Government” and does not subsequently pass (by simple majority) the motion “That this House has confidence in her Majesty’s Government” within the following 14 calendar days. A general election is automatically brought about if this 14-day period expires.

14.The aspect of the confidence relationship between Parliament and the Government, whereby a vote of no confidence may lead to a general election, is reflected in Section 2(3). The Act provides for a 14-day period during which confidence in the existing Government could be re-established, or established in respect of a new government, by passing the prescribed motion of confidence. If confidence in the government is established within the 14 days, the procedure under the Act is deactivated, so there is no early general election and the Parliament resumes the rest of its five-year term.

15.The Act sets out the exact wording of both the no confidence and confidence motions which have effect under the Act.

No confidence motion, Section 2(4)

“That this House has no confidence in Her Majesty’s Government.”

Confidence Motion, Section 2(5)

“That this House has confidence in Her Majesty’s Government.”

16.The Clerk of the House described the setting out of the exact form of the motions in the Act as having established a “particular class of statutory motion”.17 He said that the general legal view was that only these exact motions could engage the provisions of the Act. Motions using different words or even a motion which includes these exact words but with other words added before or after, to set out the reason for no confidence, would not on his understanding engage the terms of the Act.18

17.The stated purpose of the Fixed-term Parliaments Act 2011 was to establish a fixed five-year cycle for elections and to place the power to call early elections with Parliament. General elections now occur, and can only be brought about under the Fixed-term Parliaments Act 2011. The power to call early general elections now rests solely with the House of Commons. The Prime Minister can no longer call a general election without the House of Commons satisfying the provisions of the Act, because the power to dissolve Parliament is no longer a power held by the Sovereign.

18.The Act sets out two procedures under which an early general election can take place. First, under section 2(1), there can be an early general election if at least two thirds of the Members of the House of Commons pass the motion defined in the Act in favour of an early general election. Alternatively, under Section 2(3), the House can pass the motion of no confidence as defined in the Act, and if the House cannot pass a motion of confidence in the same, or a new, administration within 14 days, then the loss of confidence in the Government leads to an early general election.

19.There is a general legal view that if a motion using other words to express no confidence, or a motion using the words from the Act, but with the addition of any other words, is passed, this would not engage the provisions of the Act and as such cannot bring about a general election. However, this could be tested in the courts, because it is a statutory provision. To clarify this the House could adopt a resolution that establishes that, in the view of the House, only motions consisting solely of the words specified in S2(4) & (5) are motions that would engage S2(3) of the Fixed-terms Parliaments Act 2011. This would be a matter for the Procedure Committee.

Possible misuse of Section 2(3)

20.As set out above, if a Government wishes to call an early general election, the Act requires a majority of two-thirds of the Members of the House under the Section 2(1) procedure. It was this procedure that was used by the Prime Minister in 2017 to bring about an early general election. However, the second route to an early general election through a no confidence motion under Section 2(3) occurs on a simple majority of the House of Commons. This has raised the possibility, however unlikely, that a Government faced with a House of Commons unwilling to pass the section 2(1) motion by the necessary two-thirds majority could circumvent the requirement for a two-thirds majority by tabling a no confidence motion in itself under Section 2(3) and then whipping its Members to vote for the motion. The Government could then wait out the 14-day period and bring about a general election on a simple majority, essentially “gaming” the Act.

21.This concern was raised during the passage of the Act and Rt Hon Mark Harper MP, in his then capacity as the Minister for Political and Constitutional reform, said that it would be “absolutely unconstitutional” for a Prime Minster to behave that way. Mr Harper stood by these comments in evidence to the inquiry, and said that while it would be “legally permissible”, taking this route would be “running against the spirit of the legislation and would not be something that would be appropriate”. He stated that the main check on this occurring was a political one as he suggested the “public would not respond well to a Government behaving in that way.”19

22.The Leader of the House, when asked about this potential loophole in the Act, did not seem to share Mr Harper’s view that a government moving a no confidence motion in itself in order to circumvent the requirement for a two-thirds majority would be unconstitutional. She said:

What I would say there is that this Act is binding on all and therefore any no confidence motion under that Act would be constitutional by definition, because it is part of a legally binding Act of Parliament. I would say that any no confidence motion under the Fixed-term Parliaments Act by definition has statutory effect and is therefore constitutional.20

23.We agree with the view expressed by Rt Hon Mark Harper MP that a governing party seeking to bring about a general election through the “no confidence” mechanism provided by Section 2(3) of the Fixed-term Parliaments Act 2011 in order to circumvent the requirement for a majority of at least two-thirds under the Section 2(1) risks a political penalty at the ballot box; and this is likely to be enough of a deterrent to prevent any Government from using section 2(3) to bring about a general election. It is our view that, while legally possible, it would be entirely inappropriate for a Government to use the simple majority route to a general election under section 2(3) to circumvent the requirement for a two-thirds majority in Section 2(1). However, it must be accepted that there is nothing in law to prevent such an abuse.

The 14-day period

24.What occurs during the 14-day period following a statutory no confidence motion under the FTPA is not addressed by the Act. Dr Blick described the silence of the Act on the 14-day period as being a difficulty that has created confusion.21

25.The Clerk of the House indicated that, aside from the prescribed motions, what occurs during the 14 days was a political and not a procedural question. From the procedural point of view, a motion in the form set out in Section 2(4) would be agreed to, then there would be the 14-day interval during which time the House could pass the motion in the form set out in Section 2(5) expressing confidence in the Government, effectively neutralising the previous motion.22

26.When asked if the Prime Minister would be under a duty to resign and to advise the Sovereign to send for the Leader of the Opposition, if it was clear that the Opposition could form a Government, rather than wait 14 days to bring about an early election, the Leader of the House said:

Under the Fixed-term Parliaments Act, the Government, if they have lost a no confidence motion, would have 14 calendar days in which to pass a confidence in the Government motion. If they fail to do that, that then leads to a general election. You are speculating on a very complex alternative, but the fact is that it is for a confidence motion in Her Majesty’s Government within 14 days and you will appreciate that Her Majesty’s Government in spite of having lost a no confidence vote would still be Her Majesty’s Government at that point.23

Writing to follow up on her evidence the Leader of the House further clarified:

For a motion of confidence to have statutory effect, it must be a vote of confidence “in her Majesty’s Government”. Therefore, for an [early] election to be stopped, the vote of confidence would have to be in the appointed Government. Any alternative government would have to have been appointed before a motion under the terms of the Act could be passed to stop an election.24

27.The Leader of the House said that the Act is clear that the motion of confidence is in Her Majesty’s Government. As such, for an alternative Government to establish the confidence of the House the existing Government would have to resign, and the Sovereign send for a new Prime Minister. Only then could the new Government put down the confidence motion and stop the 14-day clock. We do emphasise that, in law, the House could pass the statutory motion of confidence in any government at any time, if it wanted to stop the 14 day clock.

28.Rt Hon Mark Harper MP said that, from his recollection of what was said at the time the Bill was making its passage through Parliament, the view was that there would be “political discussion” during the 14-day period. He continued:

Clearly what occurs between that period—to go from having lost a motion of no confidence to being able to win a motion of confidence—is a political process. It will depend to some extent on the balance of forces in the House, whether it is because the Government do not have enough Members of Parliament or because a number of Members of the governing party have voted in a particular way. They are all political questions and the circumstances will vary.25

He also sounded a note of caution, saying:

However, as to what exactly would happen, that would be a political question. It would be somewhat uncertain, and anyone voting against the Government in a motion of no confidence—who actually wished the Government well—ought to be minded to think about how uncertain that process would be. However, I think it would be a political question, not set out in the Act.26

29.Ultimately, as Mr Harper told us, the Sovereign decides who to send for to attempt to form a government. The Sovereign would need to be given clear advice that a new Prime Minister could command the confidence of the House. Considering the prospect of several opposition parties grouping together, Mr Harper said:

If that group of Opposition parties publicly set out a position that they would support a particular individual to be Prime Minister and they together commanded a majority, there would be a very clear choice there, but that may not be the case. Therefore it would be a very uncertain process and would ultimately be a political process. That is not set down in the Fixed-term Parliaments Act at all.27

30.One of the most important things that MPs must think about during this period, he pointed out, is that Her Majesty should not be drawn into the political debate. Mr Harper praised the way that Prime Minister Gordon Brown handled the transition from one administration to the next in 2010, even when there was criticism that Mr Brown was remaining in the position too long. Mr Harper said that he thought Mr Brown stayed “in post long enough to be able to give Her Majesty a clear recommendation, as is his constitutional duty, about the person she should send for to form a Government.”28 The Cabinet Manual states in paragraph 2.10:

The application of these principles depends on the specific circumstances and it remains a matter for the Prime Minister, as the Sovereign’s principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government.29

31.The Cabinet Manual also says:

In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons.30

32.If, following a vote of no confidence, there is a person who could clearly command the confidence of the House, the Cabinet Manual makes clear the Prime Minister is expected to resign.31 If there is not a clear alternative, the Cabinet Manual advises that “Where a range of different administrations could be formed, discussions may take place between political parties on who should form the next government.” It then refers the reader to the guidance on what should occur following a general election where no party wins a majority of seats.

33.This guidance states that if the leaders of the parties involved in negotiations seek the support of the civil service, this can be arranged with the authorisation of the Prime Minister, and any support would be provided on an equal basis to all parties. The civil service would advise the incumbent Government in the usual way. Essential business would continue to be done by the Government; however, restrictions would be placed on Government activity beyond this. In particular new actions of a continuing or long-term character would not be expected to occur.32 This is sometimes referred to as the caretaker convention, and implies a duty to keep the country running, but not to make any long-lasting decisions, as the authority to govern has been removed.33

34.The Fixed-term Parliaments Act 2011 provides legal certainty only about certain matters. It is silent on what might occur during the 14-day period following a statutory vote of no confidence under Section 2(3). This is to some extent inevitable because what occurs during this period will depend on the circumstances that led to the vote of no confidence. As the Clerk of the House told us, what occurs during the 14-day period is matter of politics and not procedure. The 14-day period allows time for confidence in Her Majesty’s Government to be re-established. Whether this is done through a change in personnel, policy or party is entirely a matter for the political process.

35.The Cabinet Manual is a helpful guide on what should occur. It is clear that, during the 14-day period following a vote of no confidence under Section 2(3), the Prime Minister is under a duty not to resign unless and until it is clear another person commands the confidence of the House. It is also clear that in the event that it becomes apparent that another person could command the confidence of the House the Prime Minister would be expected to resign. Not to resign in such a circumstance would risk drawing the Sovereign in to the political process, something the Cabinet Manual is very clear should not occur.

15 If a motion is pressed to a division in the House.

24 Letter from the Leader of the House, 4 December 2018

29 Cabinet office, The Cabinet Manual, October 2011 para 2.10

30 Cabinet office, The Cabinet Manual, October 2011 para 2.9

31 ibid para 2.19

32 Cabinet office, The Cabinet Manual, October 2011 para 2.12–16, 2.27–2.29, 2.31

33 Q119 [Blick]; Q120 [Schleiter]

Published: 11 December 2018