Commentators frequently say Fixed Term Parliaments Act means traditional no-confidence votes are defunct – but it’s not so. Here’s why
The media’s talking heads have discussed at length whether Labour leader Jeremy Corbyn may call a vote of no confidence in Boris Johnson’s government next week under the provisions of the Fixed Term Parliaments Act (FTPA).
“The ability of a government to command the confidence of the elected House of Commons is central to its authority to govern. It is tested by votes on motions of confidence, or no confidence.”
The Cabinet Manual
However, the likelihood that the time will be right for such an attempt has receded, because of the squeamishness of Tory MPs at the thought of backing an Opposition motion – and even more because of the posturing of LibDems and other centrist MPs.
But there is another option, about which Tories and centrists may feel less squeamish – a defeat of the Queen’s Speech that the monarch will deliver in October to lay out Boris Johnson’s supposed legislative programme.
Many pundits routinely tell viewers and readers that the FTPA has superseded other, traditional forms of no-confidence vote, such as the defeat of a Queen’s Speech. Murdoch journalist Tim Shipman, for example, has written:
Since the passage of the Fixed Term Parliament Act in 2011, defeat on a Queen’s Speech was no longer seen, constitutionally, as a confidence motion that would force a prime minister’s resignation.
However, the routine conclusion is incorrect – and both Parliament and the government that implemented the FTPA have themselves said so.
PACAC and Briefing Paper 02873
House of Commons Briefing Paper 02873 (CBP), written only in March this year, is explicit on the issue. The CBP noted that a PACAC (Public Administration and Constitutional Affairs Committee) report published last December specifically addressed claims that the FTPA had “has superseded the pre-existing conventions around the confidence of the House in the Government” – and that the PACAC report responded with:
the very firm view that the Act has in no way affected the ability of the House to express no confidence in the Government through other means…
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…
Just as importantly, page 13 of the CBP notes that the government does not have to say a vote is a confidence matter, as long as MPs generally understand that it is one:
Other motions put down by the Government or the Opposition treated by the Government (whether expressly declared as such or not) as, or because of the particular circumstances can be regarded as, motions of censure or confidence.
The government’s own intent
But it is not just the CBP that says the FTPA was not intended to limit the use of previous expressions of no confidence. The Cameron government that brought in the Act said so too, in response to a parliamentary committee’s report on the Act:
The Bill is focussed on establishing fixed terms and the procedures for calling extraordinary elections. 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.
The CBP does state that a vote on the Queen’s Speech has never been tested as a no-confidence vote on its own, because the only time a monarch’s speech has been defeated (the King’s Speech of 1924), the successful amendment to it also contained a specific expression of no confidence.
However, it’s clear that the defeat of a Queen’s speech has always been understood to be a no-confidence vote, as even Tim Shipman noted above. The Institute for Government recently referred to to that clear precedent in an article on the potential defeat of Johnson’s planned Queen’s Speech:
Although a politically damaging defeat on the Queen’s Speech would not automatically lead to an election under the Fixed-terms Parliament Act, it has historically been seen as a confidence matter
What happens next
What the FTPA does change is what happens after a successful no-confidence vote. In previous eras, as the CBP notes, either the government would immediately resign and be replaced by the official Opposition, or the monarch would dissolve Parliament and trigger a general election.
However, under the terms of the FTPA a successful no-confidence vote triggers a fourteen-day period in which any would-be replacement government needs to win a vote of confidence in order to begin government – and the failure to do so then leads to a general election. This would apply to any form of successful no-confidence vote, not just one using the specific wording of an FTPA-compliant motion.
A defeat of this government’s Queen’s Speech would be a no-confidence vote, as has always been the case. In spite of commentators’ claims to the contrary, the FTPA has not changed that – and both Parliament and the government have said it was never intended to.
Such a defeat would automatically remove the government’s right to govern – and trigger a fourteen-day period in which Corbyn’s Labour could take office if it was able to win a confidence vote. If not, the UK would have another early general election.
Assuming, of course, that Boris Johnson did not try to simply ignore Parliament’s expression of no-confidence and cling to office. If he did that, it would be a constitutional crisis of a scale to tower over the current anger about Johnson’s decision to mislead the Queen into suspending Parliament so he can try to prevent MPs blocking his headlong rush to a no-deal Brexit.
Out of ignorance or ulterior motive, much of the media has misled viewers and readers about the state of law and precedent since the FTPA came into force.
But should Parliament try to defeat the Speech? It’s not as clear-cut or straightforward as it might seem at first glance. The next article on the matter will examine the landscape of October’s Queen’s Speech – and the pitfalls that may not be apparent to casual, or even passionate, observers.
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