The House of Commons Public Administration and Constitutional Affairs Committee (PACAC) has today published an interim report on the effect of confidence motions in the light of the Fixed-term Parliaments Act 2011 (FTPA). The report helpfully cuts through confusion that has developed in this area since the Act was passed under the 2010–15 Conservative-Liberal Democrat coalition government. The timeliness of the report’s publication, and the resultant laying to rest of uncertainty about the FTPA’s implications, need hardly be pointed out, bearing in mind current political events in the UK.
The FTPA provides that elections take place every five years, and that an early election — i.e. one that would occur before the end of any given five-year period — can occur only in the circumstances specified in the Act: that is, (a) if a motion in favour of an early election is supported by MPs accounting for at least two-thirds of the total number of seats in the Commons, or (b) if a motion (passed on a simple majority of MPs voting) that “this House has no confidence in Her Majesty’s Government” is not followed within 14 days by a further motion (passed on a simple majority) that “this House has confidence in Her Majesty’s Government”.
A view emerged in some quarters that the Act provides an exclusive mechanism for the expression of no confidence in the Government, and that it sweeps away constitutional conventions concerning the effects of a successful motion of no confidence. However, that view rests on a basic misconception about the nature and effects of the FTPA. Its central concern is not the regulation of no-confidence motions or government formation; rather, it is the regulation of when general elections occur. The latter is now regulated by law, in the form of the FTPA; but the former remains the preserve of constitutional convention.
The PACAC report, adopting a position that I advocated in a blogpost written in 2015, is a useful corrective to this misconception. In particular, the report restates the following cardinal principle:
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.
It goes on to say that:
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.
It therefore remains the case that the House “is free to express its confidence in the Government, or not, in any manner it chooses”. Thus, while “[i]t is correct that only a motion in the terms of the Act could invoke the statutory provisions leading to a general election”, the FTPA “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”. Crucially, it follows that
if the House were to express no confidence in the Government [other than through a motion passed under the FTPA], 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.
None of this is to doubt the significance of the fact that, as PACAC puts it, the FTPA “provides the only means of bringing about an early general election”. But no-one should be in any doubt that the House of Commons remains capable of passing a no-confidence motion in the Government other than by means of a motion under the FTPA. And equally no-one should be in any doubt that such an expression of a lack of confidence in the Government continues to engage the fundamental constitutional principle that the Government’s authority to govern is dependent upon its commanding the confidence of the House of Commons.