5The effect of Fixed-term Parliaments Act 2011 on the convention of confidence in the Government
43.Seven years on from the enactment of the FTPA, questions have been raised about the extent to which the Act has affected the previously existing confidence conventions; and to what extent new conventions have arisen to guide the proper use of the provisions of the Act.
44.Some have expressed the view that, because Section 2(3) sets out in statute the exact wording of a confidence motion that can lead to a general election, this is the only effective way that a government could lose the confidence of the House. This was the view of Rt Hon Mark Harper MP, who said:
“it is very clear from the Act that the only thing that is a confidence motion—a motion that if lost would lead to the fall of the Government and the triggering of a general election—is a motion in the terms laid down in the Act.”
45.He said that if a motion does not fulfil exactly the wording set out in the Act “then it is not a confidence motion” and added that there may be “a political effect of the Government losing [a motion outside the terms of the Act] but there is no legal effect. It is only a confidence motion if it is in the terms set down in the Act.”45
46.The Leader of the House expressed a similar view when giving evidence to this Committee about confidence votes outside the terms of the Act. She said:
The Act has changed constitutional practice, so it has replaced previous conventions and it has codified how motions of no confidence operate in future… It is only the case that a no confidence motion can be considered as having statutory effect if it is brought forward under the Fixed-term Parliaments Act… If anybody wanted to dispute that, then they would need to test that motion under the terms of the Act, not under any other terms.46
47.When asked about what effect a motion expressing the loss of confidence of the House outside the terms of the Act might be, the Leader of the House said: “it might have political effect but it would not have statutory effect. It is only a no confidence motion under the terms of the Act.”47
48.The position the coalition Government expressed in 2011 during the Bill’s parliamentary stages, however, suggests that this was not the intention behind the Act. In its response to the Political and Constitutional Reform Committee’s Report, Fixed-term Parliaments Bill, the Government said that the intention of the Bill was to establish parliamentary fixed terms and the procedures for calling extraordinary elections; and beyond this the Government clearly stated that:
The aim of the Bill is not otherwise to interfere with the conventions which govern the position where the Government loses the confidence of the House. The Government considers that such matters are better left to convention.48
49.This was also the contemporary interpretation of the Act expressed by Professor Blackburn, who said the “the status and effect of a no confidence motion remains largely as it was prior to the Act”.49 He went on to state that:
… if a motion falls within the terms of the Act, the provisions of the Act apply and those are statutory. Any other type of motion will have exactly the same effect that it would have had before, and the effects are political.50
Professor Schleiter agreed with this analysis and said that a motion of no confidence which was outside the terms of the Act, but which was understood to be a motion of confidence under the pre-existing conventions around confidence, “would still withdraw the authority of the Government to govern”.51 Dr Blick also held this view and added that, while there was clearly some scope for debate about what does or does not count as a confidence vote, this has always been the case. For him, if a motion was very clearly pointing towards the withdrawal of confidence, it would be very difficult for the Government to continue.52 All three said that a confidence vote is about the removal of authority to govern, and this is removed not by statute but by the expression of opinion of the House, a resolution.
50.Addressing the issue of implicit votes of confidence such as the Queen’s Speech or Budget votes, Professor Blackburn and Professor Schleiter said that, before the FTPA, these votes could be (but were not necessarily) matters of confidence; and this depended on the political circumstances surrounding the vote. They asserted that this was also the situation after the FTPA.53 While a government might be able to accept amendments on these votes, it would be a very different political context if they simply could not pass a Budget or their programme for government as set out in the Queen’s Speech. Dr Andrew Blick said that withholding a Budget has been viewed as the “reserve deterrent” or “nuclear option” for the House Commons if, after expressing a lack of confidence, the Government refuses to leave.54 Under an Act no confidence motion, the Government would no longer be able to resist the will of the House, because a general election will automatically be brought about after 14 days in the absence of the required confidence motion. However, this reserve deterrent of withholding a Budget could still be used to deal with a Government refusing to resign following a no confidence vote outside the terms of the Act.
The Cabinet Manual
51.The Cabinet Manual provides, as Dr Blick described it in evidence to the Committee, “the Executive’s view of our Constitution”; and, while it is not the decisive voice on the constitution, it provides an important voice of guidance on many issues.55 The Leader of the House has said it is intended to “serve as a ‘guide to laws, conventions and rules on the operation of government’. The Cabinet Manual is a record of those rules and practices and not the source of any rule.”56
52.The Manual is clear on the importance of the confidence relationship between Parliament and the Government. Chapter 2 of the Manual, which deals with elections and government formation, begins by stating that:
A government holds office by virtue of its ability to command the confidence of the House of Commons, chosen by the electorate in a general election.
53.It sets out not only that the authority to govern is derived from the confidence of the House, but also that, in the event of the Prime Minister resigning, the test of who should be invited to be the next Prime Minister is “the person who appears most likely to be able to command the confidence of the House”.57 Dr Blick told us that the statements on confidence throughout the Cabinet Manual imply that confidence is not entirely encapsulated by the 2011 Act and retains a wider existence”.58
54.Paragraph 2.19 of the Cabinet Manual deals explicitly with the FTPA and confidence motions and makes clear that motions outside of the Act can still be considered as confidence motions. It says that, while the decisions of the House which were previously regarded as expressing confidence can no longer “enable or require the Prime Minister to hold a general election”, 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”.59 Dr Blick argues that this along with many of the other statements in the Manual are clearly best understood if they are taken to include expressions of confidence both under the Act and outside those terms. This view is supported by the listing of the Queen’s Speech as a test of a Government’s ability to command the confidence of the House following an election.60
Procedure
55.Motions of no confidence and votes on these motions are not part of the procedures or Standing Orders of the House, rather the procedures of the House may be used by Members of the House to express whether they have confidence in the Government, either through a no confidence motion, or through attaching the issue of confidence to a vote on something else. The Clerk of the House said it is “possible to put down a no confidence motion in other terms than those in the Act”.61 He explained that “passing a non-statutory binding motion” would be “the House’s opinion and it has political force.”62 He further said he could
… imagine a politically extremely damaging motion being passed, effectively of no confidence either in the Government or in a specific Minister or Ministers that had a massive political effect but did not trigger the terms of the Act.63
56.The confidence of the House has always been a political and not a procedural issue. The Clerk of the House said that including the wording for confidence motions in the Act has created the potential that confidence motions could be a legal issue, but they are still not an issue of procedure. When asked whether a Prime Minister could still declare an issue a matter of confidence, the Clerk of the House confirmed that this would have no formal procedural effect, and said:
The declaration, which sounds by now almost old fashioned, that this is a matter of confidence I take to be something to do with whipping, and I know very little about that. Whoever brings forward any motion, what the Whips tell you is between them and you64
57.There is no reason why the principle that the government of the day must retain the confidence of the House of Commons should have altered. It continues to operate through convention, as it has for a long time. The Cabinet Manual reflects the established consensus and makes clear that this relationship remains central to our system of parliamentary democracy. The principle, if not the mechanics, of establishing authority to govern, which underpins this relationship, is unchanged by the Fixed-term Parliaments Act 2011.
58.The stated purpose of the Fixed-term Parliaments Act 2011 was to establish fixed five-year election cycles, but it also provides for an early general election to be called. It is clear that the Act was not intended to supersede other means by which the House could express its confidence in the Government. The House is free to express its confidence in the Government, or not, in any manner it chooses. It is a misconception 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. It is correct that only a motion in the terms of the Act could invoke the statutory provisions leading to a general election. However, the Act in no way affects the fundamental principle that the Government’s authority to govern rests on the confidence of the House, however it chooses to express it.
59.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. It is for Parliament, not the Government, to assert the terms under which this confidence (or lack thereof) is expressed. This can be through the Fixed-term Parliaments Act 2011 statutory motion, or through a non-statutory motion of no confidence, or through a vote to which the matter of confidence has been clearly attached by the Government. Any expression of no confidence by the House in the government, removes the authority to govern.
60.The Fixed-term Parliaments Act 2011 provides the only means of bringing about an early general election. Outside the terms of the Act, if the House were to express no confidence in the Government, 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.
48 Government response to the report of the Political and Constitutional Reform Committee on the Fixed-term Parliaments Bill, Cm 795, November 2010, para 56
56 Letter from the Leader of the House, 4 December 2018
57 Cabinet office, The Cabinet Manual, October 2011 para 2.8
58 Dr Andrew Blick (SRH0008)
59 Cabinet office, The Cabinet Manual, October 2011 para 2.19
60 Cabinet office, The Cabinet Manual, October 2011, Annex
Published: 11 December 2018