In the New Statesman Stephen Bush, the brightest and best of the next generation of political commentators states:
Thanks to the Fixed Term Parliaments Act, “confidence votes” have been explicitly drawn to exclude votes on the Budget or the Queen’s Speech. A government only falls if it loses a vote of no confidence. It no longer falls if it loses a major vote, a Budget vote or even the Queen’s Speech.
This obviously increases the leverage of the DUP – and Labour’s ability to harry the government day-to-day. The DUP can hold the government up, by backing them in confidence votes. But they can also let them down by deserting them on essentially everything else to secure bigger concessions from the Conservative Party.
This repeats the error of thinking that the FtPA changes the duty of the Prime Minister to resign when she has lost the confidence of the Commons, and advise the sovereign to call on someone else who commands a majority.
The essential question is: What does the Fixed-term Parliaments Act fix? Does it fix Parliaments or governments? The correct answer is that it fixes Parliaments, and when a Prime Minister is under a duty to resign is wholly unaffected.
Parliaments and Governments
Parliaments begin when they are summoned by the sovereign. The next Parliament starts tomorrow on 13 June. They end when they are dissolved. We have had no MPs since the last dissolution.
Governments by contrast begin and end with Prime Ministers. So, last month the UK continued to have a government, and Theresa May continued to be Prime Minister, even though she like everyone else elected to the previous Parliament ceased to be an MP. Blair’s government ran from 2 May 1997 to 27 June 2007, covering two and a bit Parliaments. Theresa May’s government started on 13 July 2016. This was a new government on that day, although she herself came from the same party as that of the previous government. However, in constitutional terms this is not significant.
May did not form a new government after the 8 June election. Her previous government continued. There was no constitutional reason whatsoever for her to pay a visit to the Queen as she was not resigning. This practice should be deprecated as its symbolism gives the indication that the matter of who can form a government is settled, when this is a matter for the Commons.
Conventions are rules that are not posited. Nowhere is it set down by a figure in authority that men should not wear a hat in church. In our constitution conventions constrain those who have wide discretionary powers as a matter of law. Looking at the posited law alone, the sovereign has the power to dismiss Theresa May and call on another to act as Prime Minister. It is convention that restrains her from doing so.
Before the FtPA, the sovereign had the power to dissolve Parliament. By Convention, the sovereign exercised this power at the Prime Minister’s request. This Convention has gone because the legal power to which it related has gone by virtue of the FtPA. This weakens the position of the Prime Minister.
Before the FtPA, a Prime Minister who lost an express vote of confidence in the Commons had two options. One option was to call for a dissolution, whilst remaining as Prime Minister pending the outcome of the election. This was the course Callaghan took in 1979. The other is to resign, and advise the sovereign to call on someone who can command the confidence of the Commons.
The last time the latter happened was in 1924. Baldwin was Prime Minister going into the election in 1923. The Conservative party had a plurality of seats but was well short of a majority. Upon reconvening, the House debated a vote of no confidence, which was passed, causing Baldwin to immediately resign, advising the King to call on MacDonald.
The FtPA has removed the option that Callaghan took. This means that a Prime Minister who no longer commands the confidence of the Commons must resign.
What is a Vote of Confidence?
The FtPA defines the kind of motion that must be passed for an early general election. It does not define the kinds of motion that indicate that the Commons has no confidence in the Prime Minister and must resign.
Clearly a motion may be expressed by its terms as one of confidence. Alternatively the Prime Minister may stipulate in advance that he will treat it as one of confidence and resign (or in the past ask the sovereign for a dissolution) if it is not carried.
Sometimes motions are implicitly ones of confidence. The two examples of this are votes on the Queen’s speech, and Budgets. If a government cannot pass a Budget it cannot govern, and the Prime Minister must resign and ask the sovereign to call on someone who can carry a majority. However, I think the loss of a Budget vote is merely indicative: it is possible to postulate examples where the Prime Minister maintains the confidence of the House for a budget, just not the budget presented, as I explained here.
Other votes may similarly implicitly indicate a loss of confidence requiring resignation. In 1940 following the Norway debate. 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.
What must a modern day Chamberlain do, after the FtPA?
The same thing. Resign. You have no choice. What does this mean for the DUP? It means that unless they wish to compel May to resign, they must support budgets.