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

Conclusions

The confidence relationship between Parliament and the Government

1.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. (Paragraph 8)

The Fixed-term Parliaments Act 2011

2.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. (Paragraph 17)

3.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. (Paragraph 18)

4.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. (Paragraph 19)

5.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. (Paragraph 23)

6.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. (Paragraph 34)

7.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. (Paragraph 35)

How the convention on confidence in the Government operated before the Fixed-term Parliaments Act 2011

8.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. (Paragraph 57)

9.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. (Paragraph 58)

10.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. (Paragraph 59)

11.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. (Paragraph 60)





Published: 11 December 2018