The media is rife with speculation about who will do deals with whom after May 7th and what the possibilities are. What is obvious is that most of them are working on old assumptions about how Governments are formed which predate the Fixed Term Parliament Act 2011 (FTPA), which has fundamentally changed the way these things work.
WHAT DOES THE LAW SAY?
For example, there’s been big speculation about what happens if a minority Labour or Conservative government gets defeated on their Queen’s Speech. Which rather misses the point – nothing happens. The Government doesn’t fall. There is no dissolution of Parliament.
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 this House has no confidence in Her Majesty’s Government”.
Nothing else forces a Government out of office – not defeat on a Queens Speech, a Budget, a key piece of legislation, a vote of no confidence in the Prime Minister, nothing.
Of course there may be political circumstances where a Government chooses to take such a defeat seriously and resigns. Or, more likely, they could put down the above motion themselves and dare their opponents to kick them out.
Even if the above motion is passed and the current Government is ousted there is then a 14 day period in which attempts to form a new Government can take place. And, as we often see on the Continent, that can often be an attempt by the current Government to cobble together a new combination to win a vote of confidence.
Which brings us to the second part of this process, accepting a new Government. Here the FTPA says that this must take the form of a majority of the House of Commons passing the following resolution:
“That this House has confidence in Her Majesty’s Government.”
Note the important difference that this is a positive affirmation of confidence – arguably it would be harder to pass this motion than the no confidence one, simply because it would politically endorse the Government on offer, which might be awkward for some.
WHAT MIGHT HAPPEN IN PRACTICE?
Let’s try a thought experiment based on the latest project (26 April) from YouGov on who might get what MPs on May 7th:
| Con | 278 |
| Lab | 271 |
| UKIP | 3 |
| Lib Dem | 30 |
| Green | 1 |
| SNP | 46 |
| Others | 21 |
| Total | 650 |
| Total voting | 641 |
NB “others” includes the 4 members of the Speakers team, who don’t vote, and currently 5 Sinn Féin MPs who don’t take their seats.
Let’s assume on these figures David Cameron seeks to stay on as Prime Minister and form a minority Government. Forget the Queen’s Speech and any other vote in Parliament, the only vote that could get Cameron out of No. 10 is if the House of Commons passed by a majority the proposition “That this House has no confidence in Her Majesty’s Government” – in other words 321.
Labour, the SNP, and the Greens could all be expected to vote for such a motion – 318 votes. With (currently) the 3 Plaid Cymru the ‘anti-Tory vote already reaches the magic 321 – so Mr Cameron would be out.
At this point both Mr Cameron and Mr Miliband could embark on negotiations to try and get votes to form a Government – in practice it would probably only be Labour doing this and David Cameron would probably have announced his intention to step down as Tory leader.
Labour would need to assemble the magic 321 or more votes for a motion “That this House has confidence in Her Majesty’s Government.” That might be tricky. If Labour sticks to its “no deals with the SNP” position it would be hard to assemble the 321 votes unless the SNP were forced to vote for the new Government.
This could happen because they are pledged to “lock out” the Tories and are unlikely to want to force a new General Election, which is what would happen if Labour failed to win the vote. So it could come down to a ‘game of chicken’ as to who blinks first – Labour or the SNP.
Let’s assume the opposite of the above scenario happens – David Cameron accepts he’s effectively ‘lost’ the election, even although he’s got more seats, goes to the Queen and resigns and recommends Ed Miliband be asked to form a Government.
Getting and holding onto Government is much easier for Labour in these circumstances. It is very unlikely the Tories would put down a ‘no confidence’ motion immediately, having just conceded power. And no of the smaller parties are very likely to either. Even if say UKIP were to do so, the Tories would almost certainly abstain and Miliband would remain as Prime Minister.
THE POWER OF THE EXECUTIVE AND MINORITY GOVERNMENT
In the past minority Governments have managed to hang on in Government for quite long periods. The FTPA makes this even easier and much clearer what would, and would not, force a Government out.
One of the favorite phrases of journalists at the moment is “confidence and supply”. The FTPA makes this term more or less redundant. The ‘supply’ bit was always a bit of a myth, as I have pointed out before. It is very hard to alter Government tax and spend policies and in any case any defeat or amendment would not be an issue of ‘confidence’ issue – it never was and FTPA rules it out completely. The ‘confidence’ bit has also changed as a result of FTPA, as discussed above. In reality any minority Government doesn’t need a so-called ‘confidence and supply’ arrangement to be able to govern.
Our system is generally heavily weighted in favor of the executive, HM Government, against the legislature, Parliament, and although the power of ‘Crown prerogative’ has been slightly modified in recent years it is still very strong.
This means a lot of the talk about how the SNP could ‘blackmail’ a minority Labour Government, or UKIP a Tory one, is vastly exaggerated.
Of course a minority Government would have to negotiate around specific bits of legislation it wanted to pass, but even that may prove a lot easier than many expect. Getting its tax and spend policies through is even easier – and no-one can propose to ‘end austerity’ (as the SNP supposedly does) because Parliamentary rules don’t allow it.
There’s a wider point here too – the British Political Tradition is always said to have favored ‘strong government’ but current voting patterns suggest people are much less concerned about that idea. Maybe the British electorate would welcome a Government that had to constantly negotiate policies rather than act like an “elective dictatorship”? We are probably going to find out.
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The above is very confused.
“the only circumstances in which a Government falls”
The Act says nothing at all about when ‘a Government falls.’ It stipulates when a general election takes place.
“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”
The FTPA says no such thing. It says nothing about governments ‘resigning’. Unsurprisingly, as it is about when a general election takes place, not about Governments falling, as its title says.
Immediately after the General Election, David Cameron will still be Prime Minister. If we took the above reading seriously, the only things that could cause him to ‘fall’ would be either his (unlikely!) choice to resign or a motion in the requisite form under the Act, even if Labour won every seat bar his own.
That is just obviously wrong, and is to confuse when a general election is to be held with who can form a government.
To take a more serious illustration of why Talbot is confused, consider a situation where party A has 300 seats, party B 300 seats and party C 50 seats.
Party C initially gives its support to party A, and its leader is called to be PM. 6 months later, party C changes its allegiance to the support of party B.
What happens
Well, according to Talbot, nothing unless the ‘government resigns’ or a motion of the requisite form is passed.
This is wrong.
What happens is that the Prime Minister *must* resign as no longer able to command a majority in the House of Commons, and the Queen *must* call on the leader of party B to form a government.
(‘Governments’ don’t resign, PMs do.)
The position of the PM is weaker, not stronger, than before the Act was passed as he must resign, with no fresh election unless either the 5 years is up, or a motion in the requisite form is passed..
The basic error is to have confused together (a) when a general election may be held and (b) who can form a government. The Act has changed (a). It says nothing at all about when a government does or does not fall, which is determined by who can command a majority in the House of Commons, which may change during the course of a now fixed term Parliament. In American terms, it is to confuse the legislative and executive branch.
>What happens is that the Prime Minister *must* resign as no longer able to command a majority in the House of Commons, and the Queen *must* call on the leader of party B to form a government.
Where are you getting this from? Show your working. The Fixed-term Parliaments Act 2011 has no such clause:
http://www.legislation.gov.uk/ukpga/2011/14/enacted
Governments have failed to command a majority (lost a vote) in the House of Commons plenty of times before the fixed term act came into force without it leading to a general election. So it doesn’t appear to be the previous convention either.
>It says nothing at all about when a government does or does not fall,
The entire of Section 2 is about situations in which the government falls. Unless you are try to suggest that an (early) general election being called doesn’t mean the current government falls, but you just spend several paragraphs arguing that it does.
Of course the Fixed Term Parliaments Act has no such section: (Acts have sections, Bills have clauses), The FTPA says nothing at all about when a government must resign. It is about the dissolution of Parliament, quite a different topic.
We had and have rules on when a government must resign. Rules that, on the face of the Act, have not been changed at all.
Section 2, which you cite, does NOT say when a government must fall. It provides provisions for the early dissolution of Parliament and an election. If after subsequent elections the PM still commands a majority he will not have to resign. Section 2 concerns Parliament, not the government. We have a PM now, even though Parliament is dissolved.
On Talbot’s view is even worse than I originally suggested.
What happens if Cameron lost a motion under the Act and a new election is triggered. Does that, on its own, require Cameron to resign?
Of course not, you have to wait to see what the outcome of the election is. If he commands a majority after the elections he remains in office, there is no scintilla of time when we have no PM.
On Talbot’s view, if Cameron were the only Tory MP he could refuse to resign, a mothion under the Act would be passed, and new elections held. What if, after the election if it gave the same result, he continued to refuse to resign? Do we just carry on having elections forever?
Or what if (as is not that unlikely) we have a government that has a small majority in 2015, but because of byelection losses the opposition now commands a majority? Could the PM refuse to resign, forcing a General Election? of course not: he must go forthwith. That you commanded a majority at some point in the past doesn’t mean you get to remain until a general election.
It is incumbent on those who claim that the old rules have been changed to explain how an At that is about when we have General Elections has changed the Conventions on who can form the government.
The resignation of the PM does not entail the dissolution of Parliament, and the dissolution of Parliament does not entail the resignation of the PM.
Talbot has confused the two.
A Labour (or Tory) government would not necessarily need 321 votes as suggested here, since the confidence or no-confidence motions need only a simple majority of the vote to pass. One or more parties might abstain. Imagine 270 Labour MPs supported by 30 LibDems, and 50 SNP MPs abstaining. 270 Tories could not gather enough of the remaining 50 votes to block a government formation, since some of those remaining MPs don’t vote, or would also back Labour. The crucial question is whether an SNP abstention would be enough to overcome Clegg’s objection to a Labour government which is ‘backed by’ the SNP
The fact that there is even a question about this amongst politically engaged people tells you all you need to know about the state of the constitution.
Spinninghugo – isn’t the point that FTPA has at least arguably changed what is a confidence vote? In the past queens speech and budget were both considered confidence issues now not under FTPA.
How does the PM know she has lost confidence of house in order to resign?
No. The wording of the Act is quite clear.
Section 2 provides a mechanism by which an election may be called before the expiry of the 5 year fixed term.
Neither it nor any other provision of the Act tells us
(a) when a PM must resign
or
(b) who the Queen should call upon to be PM.
These questions are not dealt with by the Act, which concerns Parliament, not the government.
Let’s try and dissect exactly where we stand post-FTPA. For simplicity I’m going to refer to “the government” throughout though I realise that in some instances it should be “the prime minister”.
1. In this country there has never been a mechanism for the legislature (parliament) to dismiss the executive (government). For this reason it has long been the convention that governments are expected (though not compelled) to resign if they can no longer “command a majority” in the House of Commons.
2. In this context, “command a majority” means winning each and every vote on “matters of confidence” (governments CAN lose votes on other matters without having to resign).
3. “Matters of confidence” have not previously been well-defined, though at various times in the past they have been held to include the Queen’s Speech, financial bills and key issues of foreign policy.
4. The FTPA has led to “matters of confidence” being re-interpreted as ONLY those confidence/no confidence motions which are explicitly mentioned in the FTPA, Therefore no other votes count as “matters of confidence” and so no other votes can oblige a government to resign. I should stress that this interpretation is not mine but that of the Commons Information Office. I can see sound reasons behind their interpretation though I won’t go into them here.
It follows that Prof Talbot is not wrong or confused in his blog on the consequences of the FTPA.
What it actually tells you about is the state of the constitution after it’s been messed about with by those who claim to be disinterested, modernising reformers, but are actually deeply partisan, wrecking meddlers. What’s even worse is that they’ll try to use the confusion they themselves have caused as a reason to argue for yet more “modernisation” of the constitution, which is likely to be even more disastrous.
Confidence and Supply has been a feature in Government in New Zealand for the past 15 or so years. What is interesting and I think missing in the UK discussion is that they are more than just a ” we will support you ” document. They have allowed for strange coalition Governments that are not really coalitions. Confidence and Supply partners often get not only policy but Ministerial posts, albeit outside Cabinet, they can be senior roles…including the Minister for Foreign Affairs at one point. So they seem slightly semantic in the idea that its a softer arrangement than a coalition, no party seems keen to withdraw confidence and supply or to flex their muscles either…
Procedurally, if the arithmetic in the Commons is very tight, is there any opportunity for a motion of no confidence to be tabled before the Queen’s Speech? My understanding is that there isn’t, and that therefore if it looks tight and Cameron remains PM in the hope of retaining the confidence of the Commons, the first vote on the Queen’s Speech will be decisive. It seems hard to imagine any government losing that vote, then tabling a no-confidence motion, surviving it, and attempting to remain in office – if it can’t pass a Queen’s Speech, it can’t govern.
I’d expect that to be a theoretical scenario though. Unless the Lib Dems have a decisive number of MPs and refuse to say how they’ll vote, it should be possible to count pretty safely how many MPs are for and against Cameron. In that case, the usual convention will operate as normal: if it’s clear that the PM does not enjoy the confidence of the Commons, he must resign.