Some people have criticised the analysis of the impact on the FTP Act on the power of the executive and accused me of being confused. I am afraid it is they who are confused. Most of their criticism seems to boil down to clinging to old notions of ‘confidence and supply’ and ‘confidence of the House’, notions superseded by the FTP Act.
Lets recall the political circumstances and purposes of the FTP Act. It was conceived by a coalition Government intent on implementing what could be very unpopular austerity policies. They wanted to ensure that they “hung together” lest they “hang separately” for as long as possible – the five years allowed between elections.
They wanted it to be as difficult as possible for (a) them to be turfed out of office and (b) a new election to be forced upon them before their five years was up.
The only serious restraint was they couldn’t frame an Act that made no allowance for either of these things, but they could frame one that made it as hard as possible to achieve either.
In the past defeat of a Government in the House of Commons was often a very grey area – it could or could not be regarded as a “confidence”missue depending on many things, including how the Government chose to interpret it.
It was this that gave rise to the myth that any defeat on “supply” or “finance” motions was tantamount to a vote of no confidence. It never was but it suited Governments to let everyone think it would be, with the intention but not always the effect, of restricting rebellions.
They had to have something in the FTP Act to allow for a Government to be turfed out during the fixed-term so they made it as simple, and as hard, as possible. Hence the well-defined “no-confidence” procedure which removed all the uncertainty of vague “confidence of the House” traditions it replaced. Now the new well-defined motion of “no confidence” was the only circumstance in which the Government would fall.
All other types of rebellions and defeats became irrelevant, except perhaps politically. Thus the Government could be defeated on an issue of war (traditionally one regarded as a “confidence” issue) and carry on regardless (the Syria defeat).
So the new arrangements had the intended bonus of allowing their back benches to let of steam by rebelling, whilst being safe in the knowledge it would not lead to the fall of the Government. Given what they expected would be a fractious Parliament, this was a sensible move.
They had to make it as hard as possible to replace one Government with another during the fixed term. Hence the restricted “no confidence” motion and crucially the fact that a new Government requires a positive vote of confidence. As I explained in my post, this makes it more difficult to replace a defeated Government because it requires a majority to “sign up” to confidence in the new Government, something some of them they may not want to be seen to be doing.
Remember the arithmetic of the 2010-15 Parliament, which is what the framers of the FTP Act were thinking about. If some combination of LD or even Tory rebels, Labour and other parties managed to pass a “no confidence” vote the positive “confidence” requirement would have made it virtually impossible for a Labour plus Government to have been formed (as is discussed is Andrew Adonis’s excellent book on the 2010 negotiations).
The “two-thirds” restriction on a vote to dissolve Parliament was just the icing on the cake.
So the FTP Act was designed, as far as is feasible, to cement the Coalition Government in power for the full five-year term. It will also now make it easier for a minority (Labour?) government to hang onto power after May 7th. But back in 2011 the Coalition partners were mostly concerned with protecting themselves, and weren’t thinking that far ahead. Now they might, ironically, be the victims of the ‘law of unintended consequences’.
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it seems that it needs to be explained again why this is obviously wrong.(NB it is nothing to do with ‘confidence and supply’ as is puzzlingly thought). Let me explain, simply, in two ways.
1.
Today, David Cameron is the Prime Minister. What if in the General Election on May 7th, Labour secures a large majority. What *must* Cameron do on May 8th?
We all accept, even Talbot I hope, that Cameron is under a duty to go to the Palace and resign, recommending that the Queen calls on Ed Miliband, as someone who can command majority support in the Common, to be PM.
Cameron has no choice in the matter. There is no statute saying this. it is nothing to do with the Fixed Term Parliaments Act (which concerns when elections must be held, not when government must resign). It is the Convention.
if, implausibly, Cameron refused to do this, could he be removed by the Fixed Term Parliaments Act? Obviously not, as it provides no mechanism for a change of government. It concerns the legislature, not the executive.
What if (as is possible) the position is not clear cut on May 8th? In those circumstances Cameron would be entitled to hold on and test whether he commanded a majority in the Commons in a vote. if he did not, he must resign, and advise the Queen to call on Miliband.
[We all agree that her role is just a formal one.]
If that is Cameron’s position on May 8th, what is must he do if he finds himself in this position on May 9th? June 10th? 3 years into the Parliament because of byelection losses?
Exactly the same.
A PM who does not command a majority of the House of Commons must resign: He has no choice.
2.
Prior to the Fixed Term Parliaments Act, if a vote of no confidence was passed the Prime Minister had two options. Either he resigned or asked for a dissolution. If the latter it was always granted by the sovereign. (Prior to the 1920s the Convention was that the PM always faced a vote of no confidence before resigning, he didn’t just go straight to the sovereign after defeat in an election.)
How has the FTPA altered this?
It has removed the PM’s power of dissolution. Now Parliament can only be dissolved after either 5 years or a motion in the form of section 2 is passed.
So, what must a PM do if he or she now loses a vote of confidence?
The option of a dissolution has been removed. He or she must resign.
If Talbot were right, a PM who lost a vote of confidence could refuse to resign. The only way of ‘removing the government’ on his peculiar view is for a vote under s2 of the FTPA to be passed. This just confuses together the legislature and the government. (Notice in all the above the line writing, he doesn’t actually look at what the words of the Act say). A Parliament is brought to an end by its dissolution. A government is brought to an end by a PM resigning.Neither one entails the other.
Put yet another way. There was one government under Tony Blair from 1997-2007, which came to an end when he resigned. There were three Parliaments during this time. When Parliaments and governments begin and end are separate questions, and Talbot is conflating them.
NB section 2 does not, as Talbot thinks, define what a vote of confidence is. All it does is define the motion that is necessary to pass for there to be an early General Election.
3. For various reasons I have to post anonymously. It is important that Talbot’s view is not thought correct. Some constitutional lawyers need to explain, publicly, why it is wrong before the election.
This is the last time you will be allowed to post anonymously on this site unless you provide me with a good reason why I should allow it. You can email on colin.talbot@manchester.ac.uk and I will treat it in confidence. Hiding behind anonymity is a hideous vice that has polluted discourse on the internet allowing all sorts of abuse and discourtesy. I post everything under my own name and expect others to do the same.
Your first point above is a complete red herring and doesn’t relate to anything I’ve said.
On your second point, of course a Minister, even the Prime Minister, would have to resign if they lost a vote of confidence in them personally. Another red herring. The Government could carry on with a new Minister/Prime Minister and I never said anything different. That is not what I was discussing.
Section 2 of the FTP Act does indeed define precisely what a vote of confidence in the Government is. That is why it’s there. It doesn’t automatically bring about the end of a Parliament (as indeed could happen under the old system). It allows for a new Government to be formed within 14 days – this could in theory include the same parties who made up the previous Government.
I am not ‘conflating’ the issue of Parliaments and Governments, it is you who are confused about the issue and your argument seems to mutate every time you say anything.
I have quoted directly from the Act and provided links to relevant materials – unlike your posts which do not.
I look forward to hearing from your “constitutional lawyers”, but I am not holding my breath. My views have been read by thousands now and no-one apart from you has disagreed.
I have been called as an expert witness to Parliament more than two dozen times in the past two decades, including the Treasury Committee, Political and Constitutional Reform Committee, Public Administration Committee and the Lords Constitutional Reform Committee. I think I might just have a vague idea of what I’m talking about.
“The Government could carry on with a new Minister/Prime Minister and I never said anything different.”
Constitutionally, this is inaccurate. In the UK the sovereign appoints a PM who forms a government. When Wilson resigned, Callaghan formed a new government. I know a layperson may think it is the same government (because drawn from the same party with much the same members) but it is not.
Section 2 is here
http://www.legislation.gov.uk/ukpga/2011/14/section/2/enacted
On its wording it does not define what a vote of no confidence is. It defines the motion that needs to be passed for an early general election. That is it.
I apologise that perforce I must post anonymously. Professional reasons I am afraid.
Adam Tomkins says me is going to write about this.
Pedantically, you are right – it would be ‘new’ Government.
But to the “layperson” (as you disparagingly call them) a Labour government is a Labour government, whether it’s Wilson/Callaghan or Blair/Brown – and I am trying to communicate with a wide audience.
Please don’t assume because I don’t spell out every nuance I don’t know them. Most writers would talk about the Labour Government of 1997-2010 or Tory Government of 1979-1997, when technically it should Governments, with an “s”. In reality it makes not much difference whether there’s an “s” there or not – they were continuous Governments of a particular party.
One of my pet gripes with academia is that we all too often get hung up in “angels on a pin head” arguments with no practical or even theoretical significance.
And I repeat, the only ‘no confidence’ vote which forces the resignation of an entire Government is now as spelt out in the FTP Act 2011.
As for your “professional reasons”, I’ll take them with a very large pinch of salt as we only have your anonymous word for it.
But, for our purposes this is important, not mere pedantry.
In your original post you said
“Under the FTPA the only circumstances in which a Government falls would be if (a) they resigned – unlikely but not impossible or (b) the following is passed by a majority in the House of Commons…”
That isn’t right.
A Government *only* comes to an end when the Prime Minister resigns (or dies). Once upon a time the sovereign could remove the PM, but those days are long gone.
So, Gordon Brown’s government ran from 27 June 2007 i(when the Queen appointed him) until 11 May 2010 (when he resigned four days after the election for a new Parliament). Margaret Thatcher’s government ran from 4 May 1979 – 28 November 1990. Every single government ends with the resignation of the Prime Minister, and may be uninterrupted be general elections for Parliament.
The issue then is when must a Prime Minister resign? The answer (and this is Convention only) is when he or she no longer commands a majority of the House of Commons.
How can a Prime Minister who once has this, lose it?
One way is that the composition of the Commons may change in a General Election, but that is not the only way.
it may be that a succession of byelections change the composition of the Commons. it is also possible that he loses this because a group of MPs change allegiance whether from his own party (eg the Liberals under Gladstone because of Home Rule) or another (eg if the SNP swapped sides after the 2015 GE.)
Once the PM has lost the support of the Commons, and there is another person who has it (usually the leader of the opposition but not necessarily – see the change of government during WWII) the PM *must* resign, recommending to the sovereign that she calls on that other person to form a government.
Now in some circumstances it may be unclear whether a PM still commands the confidence of the House of Commons. that is tested by a vote of confidence, often tabled by the opposition.
How has the Fixed Terms Parliaments Act changed any of this? Only in one respect: it has made the PM’s position weaker, not stronger as you suppose.
Prior to the FTPA the PM could ask for a dissolution instead of simply resigning. The Convention had become that this was always granted by the sovereign. This acted as a deterrence (the opposition may not want an election) and a fresh chance (a new Commons may be differently constituted and support the PM). The Act takes this power away from the PM. His only option now is resignation.
The FTPA alters when Parliaments come to an end (through dissolution) not when governments come to an end (through resignation).
Perhaps worth mentioning that the original draft of the FTP Bill did allow supply etc votes to be regarded as no confidence votes and therefore trigger the 14 day period. It was down to the Speaker to decide whether a particular issue was a matter of confidence or not. I understand that it was the concerns about politicising the Speaker that persuaded the Government to accept an amendment to the Bill to make it explicit that it had to specifically be a motion of no confidence that, if passed, triggered the 14 days.