It is relatively easy to give advice as to the impact of a statute on a Constitutional Convention. If you ask “Assuming the Convention is X, what is the impact of Statute Y?”, the answer is simply a matter of statutory construction, and the right person to ask would be a lawyer.
The existence and content of a Convention is much more difficult as it is not a matter of positive law, and a lawyer as such is not necessarily the right person to ask. Conventions are a question of fact, and so it may be thought that past behaviour is the only guide. Precedent is certainly relevant, but a Convention is not merely a habit. A Convention is a rule that those acting under it ought to follow. If I make myself a cup of tea every morning at 8 am for twenty years, that is not a Convention. If one morning I wake and decide that I would prefer a coffee, I break no rule that I have good reasons to feel bound by. A Convention is a rule, not just a pattern of behaviour. We can sometimes determine what the rule requires, even though we have no specific precedent to guide us, because we can reason what ought to be done.
We are often told that we vote for governments and not Prime Ministers, as we do not live in a Presidential system. This is inaccurate. We vote for Members of Parliament, not governments. Parliament itself does not appoint or remove a Prime Minister. The person with power of appointment and removal is still, as a matter of formal law, the sovereign not the Parliament. In a Parliamentary democracy it is clearly unacceptable for a hereditary monarch to, in fact, exercise any power. As a result, today the sovereign’s role is a purely formal one. She is a cog in the system without any power of decision. This has led to the Convention that a Prime Minister who does not have the confidence of the House of Commons, when another does, will resign and recommend that the sovereign appoints the person best placed to command such confidence. The sovereign always acts upon such a recommendation. This is usually straightforward: the leader of a party with a majority in the Commons is Prime Minister. As recently as Victoria, the monarch had some discretion as to whom to call upon to act as Prime Minister, but nobody would consider that acceptable today. Least of all the sovereign personally.
In more complex cases, how is it determined whether the Prime Minister has lost the confidence of the Commons without an express vote on the matter? Before the Fixed Term Parliaments Act the Prime Minister always had the option to resign or ask for a dissolution, but the latter option has now been removed. Losing which votes now require, as a matter of Convention, that the Prime Minister resigns?
It is sometimes said that votes on the budget or a Queen’s speech are (or were) matters of confidence. (Here is Dr Catherine Haddon of the Institute of Government making this claim,)
What has triggered Prime Ministers to resign, and a government to consequently change, in the past?
Most common (since 1900) is loss of majority support because of the change in the Commons following a General Election (Brown 2010, Major 1997, Callaghan 1979, Heath 1974, Wilson 1970, Douglas-Home 1964, Attlee 1951, Churchill 1945, MacDonald 1931, Baldwin 1929, MacDonald 1924, Baldwin 1924,, Lloyd George 1922).
Of least Constitutional significance are cases of resignation for personal reasons, usually ill health (Wilson realisation of the onset of dementia 1976, Macmillan’s misdiagnosed cancer 1963, Eden’s stomach 1957, Baldwin’s weariness 1937, Bonar-Law’s fatal cancer 1923, Campbell-Bannerman’s fatal cancer 1908, Salisbury’s old age 1902) to be replaced by a new leader from the same party. MacDonald’s mental deterioration led to his resignation as leader of the National government in 1935, but he was replaced by Baldwin, a Conservative member of the coalition.
More recently, Prime Ministers have resigned because they have lost the support of their party in the Commons (Thatcher 1990, Blair 2007). Gladstone’s resignation in 1894 was similarly caused by loss of support from his own party, but by that point he was a weary 84. In 1929 the Labour party was split over drastic reductions in spending, causing MacDonald to tender his resignation, but he was persuaded instead to head a coalition National Government.
Lloyd George’s resigned in 1922 when the Conservatives, following the election of that year, withdrew their support for the coalition that he headed, leading to the appointment of Bonar Law. Similar was the resignation in 1916 of Asquith following the loss of Conservative (and other) support for his prosecution of World War I. In 1905 Balfour resigned because of splits within the Unionists over tariff reform, but this was in part tactical rather than because of loss of majority support within the Commons.
Modern examples of a Prime Minister resigning because of the loss of a vote of confidence are rare. Chamberlain in 1940 following the Norway debate is a possible example. The government Chamberlain led actually won the vote, but with such a large defection of Conservatives to the opposition motion that it implicitly showed he had lost the confidence of the Commons.
In January 1924, after the General Election of 1923 had led to a hung Parliament, Baldwin resigned following the passing of an express motion of confidence:
“That an humble Address be presented to His Majesty, as followeth:— Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled, beg leave to offer our humble thanks to Your Majesty for the Gracious Speech which Your Majesty has addressed to both Houses of Parliament. But it is our duty respectfully to submit to your Majesty that Your Majesty’s present advisers have not the confidence of this House.
Similarly in August 1892, following a General Election, Salisbury’s government was defeated in an expressly tabled vote of no confidence, leading to his resignation.
That we feel it, however, to be our duty humbly to submit to Your Majesty that it is essential that Your Majesty’s Government should possess the confidence of this House and of the Country, and respectfully to represent to Your Majesty that such confidence is not reposed in the present Advisers of Your Majesty.
In 1895 the Liberal Rosebery chose to treat a vote on army supply as a vote of confidence, and resigned, the Queen calling on Salisbury to form a government.
Looking at votes of confidence that have caused the Prime Minister to request a dissolution, there are no examples of this happening following the loss of a Queen’s Speech or Budget vote. Most recently in 1979, an election was held after Callaghan lost an expressly worded confidence motion tabled by the Leader of the Opposition. In November 1924 MacDonald stated in advance that a vote on the setting up of an enquiry into ‘Campbell’s Case’ would be treated as a vote of confidence, its loss caused him to choose to ask for a dissolution. In 1886, the loss of the Irish Home Rule Bill was similarly treated by Gladstone as a trigger to seek a dissolution.
The Queen’s Speech and Budgets
To find examples of a Prime Minister resigning following the defeat of a Queen’s speech or Budget it is necessary to go back to the nineteenth century. In 1886, following a General Election, the Conservatives under Salisbury had not obtained a majority. Instead of immediately resigning however, a Queen’s Speech was put forward. Upon defeat upon an amendment to it, he resigned, The previous year, Gladstone’s government was defeated in a vote on the Budget, and he had resigned and Salisbury was called upon to form a government. The same sequence occurred in 1859 when the Earl of Derby resigned following the loss of an amendment to the Queen’s speech, as also had the same Prime Minister in 1852 when he resigned following defeat on a Budget.
Notice, importantly, that the defeat in all of these cases necessitated that the Prime Minister resigned. These losses did not cause him to ask for a dissolution with consequent elections. As precedents they stand for the proposition that a Prime Minister must resign in favour of another, and are unaffected by the loss of the power to ask for a dissolution following the Fixed Term Parliaments Act.
Losses in the case of a vote on the Queen’s Speech or Budget strongly implies a loss of confidence, and in most cases this must be so. Indeed, as in 1886, such votes may be used by the government in cases of uncertainty to deliberately test the issue. If a Queen’s speech is heavily defeated in a vote it is hard to imagine how this could not necessitate the Prime Minister’s resignation.
But, it is possible to imagine scenarios where this is not necessarily so. Say a Prime Minister in a coalition with a small majority is uncertain of whether he possesses a majority for a controversial budgetary measure. It is included in the Budget, but the Budget is narrowly defeated as a result. Does this necessarily show that he does not possess the support of a majority of the Commons? No. That there is no majority for this budget does not show that there is no majority for any budget put forward by this government. If a budget without that measure would pass, she may retain the confidence of a majority and continue.
Unless a vote is in express terms it is indicative only. No motion unequivocally demonstrates that a Prime Minister lacks the confidence of the Commons other than an expressly worded motion, or a motion that the Prime Minister makes clear in advance he will treat as a confidence motion, and hence a resigning matter.
The most recent example of the latter was in 1993 when Major stated that he world treat a vote on the government’s approach to the Social Chapter under the Maastricht Treaty as a vote of confidence, following the government’s earlier defeat on its ratification. If the Fixed Term Parliaments Act had been in force at the time, and Major had been defeated, he would have had no choice but to resign. At that time his position was stronger than it would in similar circumstances be today, as he would no longer be able to seek a dissolution if he lost: something the rebellious backbench Conservative MPs would not have wished.
The Fixed Term Parliaments Act and Motions of Confidence
The loss of a vote expressly or implicitly showing the lack of confidence of a majority of the House of Commons requires a Prime Minister to resign, just as it did at the time of the Earl of Derby. This obligation is a Convention only, the Act says nothing about it. One thing is altered however. Section 2 requires that if a motion is passed in the form
“That this House has no confidence in Her Majesty’s Government.”
This triggers an early election unless a motion of the form
“That this House has confidence in Her Majesty’s Government.”
is passed within 14 days.
This does nothing to the Prime Minister’s duty to resign. An express motion of the form “this House calls for the Prime Minister to resign”, a form similar to that proposed to be used to remove the former Speaker Michael Martin, or a motion implicitly showing the loss of the confidence of the House (as the loss of the Queen’s Speech almost always will) would require resignation, regardless of the Act.
In interviews with the New Statesman
and the Spectator
Alex Salmond has stated how the Fixed Term Parliaments Act strengthens the hand of Parliament at the expense of the government. This will be especially so in the case of a minority government.
Importantly, Salmond (for whom I hold no brief) says
“the Parliament Act reinforced that, because it limits the ability of the incumbent to dictate an early election, and puts more power in the hands of parliament and indeed in the hands of your [party]”
This is, essentially, correct. Today the Fixed Term Parliaments Act has removed the Prime Minister’s power to obtain a dissolution from the Queen with consequent elections. If the SNP vote down a Budget or Queen’s speech, this will not, alone, trigger an early election. With a Queen’s speech there would be little incentive to vote it down in any event. the Queen’s Speech has no legislative force, and if the SNP are opposed to individual items within it, they can oppose them as and when they come up. A Budget is however different, and the SNP may choose to oppose it in its entirety, with a fresh budget without the offending measures required to be resubmitted. A Prime Minister unable to get through a Budget of which the SNP disapproves can choose to resign (as he or she can at any time) but this does not on its own change the combination of parties that are able to command a majority in the House (and consequently from which block a Prime Minister must necessarily be drawn), Such defeats may not therefore necessitate a Prime Minister’s resignation, with consequent change of government, but the SNP if they hold the balance of power will have a power of veto over measures they do not like. A Prime Minister can choose to resign if he likes, if there is someone else capable of commanding majority support in the Commons, but that does not remove the power of the party holding the balance of power.