The Fixed-term Parliaments Act and Professor Adam Tomkins

In a recent post, Professor Tomkins has written about the implications of the FTPA in a hung Parliament.

https://britgovcon.wordpress.com/2015/05/04/a-fixed-term-hung-parliament/

Almost all that he says is correct, until the final three paragraphs,

It had formerly been thought that were a government to be defeated on its Queen’s Speech (i.e. the outline of its legislative programme, presented to Parliament at the beginning of each session) or on its budget, such a defeat would amount to a loss of confidence and would lead to the government resigning and to a general election. Under the FTPA this is no longer the case. It is clear under the Act that only a motion using the words “that this House has no confidence in her Majesty’s Government” is a vote of confidence. No other vote, no matter how important, is a vote of confidence, unless it includes these words. Thus, were a government now to lose a vote on its Queen’s Speech, or were a government now to fail to get its budget through, this would not of itself mean that the House had lost confidence in the government.

My reading of the Act is that that is clearly incorrect. As Dr Mark Elliott states

http://publiclawforeveryone.com/2015/04/28/the-fixed-term-parliaments-act-a-reply-to-colin-talbot/

[T]here are (other) circumstances in which a Government can be brought down that have nothing to do with the Act. As Lord Norton has explained, there are several ways in which an absence of confidence in the Government can be manifested. The Act does not purport to regulate or change this. It does not define what a motion of no confidence is, and it does not provide that a motion of no confidence will always trigger the 14-day period. Rather, it provides that a specifically worded motion that expresses an absence of confidence will have that effect. It leaves open the possibility of an absence of confidence in the Government being manifested in other ways, including by means of a differently worded motion of no confidence. Such non-statutory no-confidence motions continue to produce effects that sound in constitutional convention rather than constitutional law. In particular, convention continues to require the resignation of a Government in which an absence of confidence is expressed. The difference under the Act is that a non-statutory no-confidence motion only requires resignation, and can no longer trigger an early election — constitutional law, in the form of the Act, having displaced the convention that used to facilitate the dissolution of Parliament whenever no confidence was expressed in the Government.

The first, and most obvious, proof of Dr Elliott’s position is the wording of section 2 of the Act

http://www.legislation.gov.uk/ukpga/2011/14/section/2/enacted

On its face it does not purport to define what a confidence vote is.

Second,  examples illustrate why the (plain words) reading of Dr Elliott is correct

1. The Prime Minister states “This vote is a matter of confidence in the government, if it is lost I shall resign.” If the vote is lost, what does (Convention) require that he does?

2. A motion of is tabled stating “This House has lost confidence in the government and calls on the Prime Minister to resign” is passed. What must the Prime Minister do?

3. After the May 8th election the result is a hung Parliament and the Cameron government puts forward a Queen’s Speech which is lost. What must he do?

It would be true to say that the Act has defined the only motions of confidence that will now trigger a dissolution (as a dissolution outside of the Act is no longer possible.) Quite wrong to claim that the Act has defined what a vote of confidence is for purposes of resignation. 

It is wrong to say, as Professor Tomkins does that prior to the Act a confidence vote “defeat would amount to a loss of confidence and would lead to the government resigning and to a general election”. The Prime Minister could elect to ask for a dissolution, but not resign pending the outcome of the election (Callaghan 1979), or to resign recommending that another who commanded confidence be called upon but with no election (Baldwin 1924), but it is wrong to suppose that he could do both.

This is clear in the Cabinet Manual para 2.19

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdf

Professor Tomkins concludes

Suppose that a Labour-led minority government is struggling to pass its budget in the face of SNP resistance. There is nothing to stop Mr Miliband going to the House to say that, if his budget is not passed, he will resign on behalf of the government and advise the Queen that the Leader of the Opposition should be invited to form a government.If the PM does this the SNP would have to support Labour’s budget or usher in a new Tory government. That new Tory government may well not last long: if it could not gain the confidence of the House it could suffer defeat on a motion of confidence and we would be into the 14-day period provided for by the Fixed-term Parliaments Act. None the less, the FTPA does not give to a minority bloc of even 45 SNP MPs quite the strong hand that the SNP leadership imagines. For sure, the parliamentary arithmetic at the end of the week could allow the SNP to cause chaos and wreak havoc, but the Fixed-term Parliaments Act is not a legislative licence for the tail to wag the dog.

If this were true (it isn’t) then the entire point of the FTPA could be subverted.

The FTPA is there to remove from the Prime Minister the power of timing of elections. If Professor Tomkins were correct, a Prime Minister could resign, and compel the sovereign to call upon a leader of the opposition in whom the House of Commons had no confidence. Such a leader would inevitably lose a no confidence motion, and elections would then be triggered. Precisely the result the Act was designed to avoid.

The correct position is stated in the Cabinet manual

The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.

The Prime Minister cannot resign, and put in office someone in whom the House of Commons would have no confidence. Whilst he is correct that the Prime Minister has the power (not the duty) to resign at any time, it cannot be the case that he is free to recommend to the sovereign that he is replaced by anyone of his choosing (advice upon which the sovereign would, in 2015, be bound to act upon).

Even if (implausibly) the Prime Minister did recommend to the sovereign that she appointed someone without majority support in the Commons, that person should refuse the office, indeed is arguably under a duty to do so. If the Leader of the Opposition declined (as he should) the Prime Minister would have to continue until someone who could command the confidence of the House could be found.

Professor Tomkins hypothetical Prime Minister has attempted to blur two issues into one, by positing that defeat for the Budget implies that the House has confidence in the Leader of the Opposition. That does not follow. By voting against the Budget, Parliament has shown that there is majority opposition to the Budget, not that there is majority support for the Leader of the Opposition, whatever the Prime Minister said in advance.

Salmond in his New Statesman interview stated

And then under the [Fixed-Term] Parliaments Act that Westminster parliament’s passed but nobody seems to have read, you’d then have a two-week period to form another government – and of course you want to form another government because this might be people’s only chance to form another government.”
Would he expect Ed Miliband still to be Labour leader at this point?

“I have no idea,” he says. “But somebody will be. I mean, one of Labour’s big fibs – there are a number – but one of them has been that the party with the most seats forms the government. No, the party that can command a majority in the House of Commons forms the government as Ramsay MacDonald did [in 1924] . . . so it’s the party that has the majority. And 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].”

That is correct. If, say, Labour won 285, SNP 45, Tory 273, Lib Dem 24, then Labour and SNP together form a majority in the Commons. What if the SNP opposed a Budget, could Prime Minister Miliband compel the sovereign to call on Leader of the Opposition Johnson if he is defeated? Could he compel the SNP to put the Tories in, through resigning?

(I have used different numbers from Professor Tomkins as he has selected a composition where Con + LD + DUP is a majority, ie where it is plausible that a Tory Prime Minister would have the confidence of the House.)

No because as Salmond says, if the SNP and Labour oppose the Tories the Queen cannot call upon Johnson to be Prime Minister as he would not command the confidence of the House. Miliband could resign, but he would have to be replaced by someone from the same block as only they can command the confidence of the House.

If it were otherwise, the FTPA could just be circumvented, and the ridiculous position that the sovereign could be compelled to make Prime Minister someone without majority support in Parliament reached. We must not let opposition to separatism (which I share) cloud our judgment.

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8 thoughts on “The Fixed-term Parliaments Act and Professor Adam Tomkins

  1. The flaw in your counter-example is simple arithmetic. It’s literally impossible for those four parties to have a total of 640 seats, since there are only 632 seats in England, Scotland and Wales. Also this assumes no PC, Green or UKIP seats. The underlying point is that it’s impossible to have a scenario where ‘Tories and friends’ and ‘Labour and friends’ can *both* get a majority of the house, unless some of those ‘friends’ are willing to switch sides. The LibDems and DUP might switch sides, but there are still a limited number of scenarios where *both* groups would have a majority if one or both of those parties switch back and forth. I do agree with your analysis of the constitutional convention, but the problem is that it isn’t enforceable if parties start to claim (for their own reasons) that the convention has changed.

  2. I agree that my numbers were sloppy, I wrote in haste. I hope you don’t mind if I change that in the text above (while leaving this below to show I made a mistake).

    I don’t think it makes any difference at all to the analysis.

  3. Thank you for your analysis that is most helpful.

    Do you have any further thoughts please on the position in the example at the end of your piece where a Miliband budget is voted down by the SNP? Convention (still applying per Mark Elliot) would expect Miliband to resign but under the Cabinet manual post FTPA he could not recommend to HMQ that the Leader of the Opposition be called to take his place, just as your example explains.

    But what is suppose to happen if Miliband’s party is happy with his budget and happy with him? Would Miliband not rather immediately propose a vote under the provisions of the FTPA of no confidence in his own Government – with the expectation of seeing it defeated? The message to the SNP would be either vote with Labour against or risk starting the 14 day period towards a dissolution (failing passing a subsequent confidence vote). The SNP may take the risk, expecting within the 14 days to reach a deal on the Labour budget (with Labour under pressure to secure agreement, which failing see a dissolution) and those parties having reached agreement, then pass a confidence vote to stop the 14 day period running to a dissolution. Meanwhile presumably, the Opposition would be trying to get a vote of confidence passed in itself to then force Miliband to resign in its favour. Alex looks set to enjoy himself, failing a Miliband-Cameron alliance to strike down the FTPA early in the next parliament.

  4. 1. I don’t think a loss on the Budget necessarily means that the PM no longer commands the confidence of the House. As I tried to explain here

    https://spinninghugo.wordpress.com/2015/05/03/the-snp-the-queens-speech-and-budgets/

    All motions that are not expressly, or declared in advance, to be confidence motions requiring resignation, are indicative only.

    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.

    2. It is always open to a Parliamentary majority to pass a motion in the form of section 2 and trigger the 14 day countdown to fresh elections. The point is that it is Parliament that has control over this timetable, not the PM, either directly as under the old law, or indirectly as Professor Tomkins claims under the new.

    • I thought that the loss of control of the money was effectually a vote of no confidence and consequently a matter for resignation.

  5. Thank you for responding.

    Re. 1. I had not seen your other post that you reference. I understand from that that “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”.

    So to modify my earlier query, rather than the SNP voting down a Miliband budget, say it voted down a piece of legislation that a prime minister Miliband had made clear in advance he will treat as a confidence motion. The SNP objects to the legislation and its votes help see it defeated. Yet,as per my query, if his party is happy with the legislation and with him, and he retains a desire for office (and no wish to make the office of prime minister a revolving door for a succession of plentiful colleagues), then he might be most reluctant to follow convention and proceed to resign himself, leaving his party to select a replacement prime minister. He would face some difficulty with public opinion and doubtless opprobrium from the Opposition if he did not, and of course see his authority undermined. So the solution per my query would seem attractive and nautral, would it not – of then restoring and demonstrating confidence in his government by calling for defeat of a no confidence motion under the FTPA? Assuming that happened, he might then reintroduce his previously defeated legislation unmodified and the cycle begins afresh. So the FTPA used in that way with that outcome (following the earlier procedures as described) could operate to keep a government in office (through preventing it resigning when no other could command the ‘Commons or by obtaining a dissolution) but not in power as it could not get its legislation passed, could it not?

    Re. 2. Agreed, given the Cabinet manual wording (if accepted as authoritative and binding by a sitting prime minister – or even HMQ, given Section 6 (1) “This Act does not affect Her Majesty’s power to prorogue Parliament”) that prevents resignation of the government if the condition “and that an alternative government does have the confidence” does not obtain.

  6. 1. I think if he says “I will treat defeat as a loss of confidence and resign” he must by Convention resign if the vote is lost. That is Major 1993. There is not, of course, any mechanism to force compliance with such a Convention, other than opprobrium, but I think in this case that would be more than enough.

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