Earlier on June 15, we published an article arguing that the debate over the Queen’s Speech was not important. Jennifer Cobbe, a PhD student in the School of Law at Queen’s University Belfast who has taught constitutional law, responds, arguing that the vote on the Queen’s Speech could be crucial for Theresa May.
It is a key rule of the British constitution that the Government of the day should be able to command the confidence of the House of Commons, and if the Government loses the confidence of the Commons then the Prime Minister must resign.
Confidence is therefore a crucial issue for the Government at the best of times, and one that becomes particularly relevant in the context of a hung Parliament in which no one party can command the support of a majority of MPs.
In 2011 Parliament passed the Fixed-term Parliaments Act (FTPA) which changed the law on the calling of elections, removing the Prime Minister’s power to call a snap election and saying instead that elections happen either every five years or in two specific circumstances otherwise:
-If the Commons resolves by a two-third majority to hold an early election (as happened in April), or
-If the Commons passes a motion of no confidence in the Government without passing a subsequent motion of confidence within 14 days
There has been some speculation as to what effect this has on the issue of confidence more generally.
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First of all it’s important to note that there are two kinds of votes in the Commons that relate to confidence and the question of whether a Government has it or not – votes on formal no confidence motions, on one hand, and votes on things that are considered by convention to be confidence issues as defeat on them indicates that the Government has lost the confidence of the Commons, on the other.
(Conventions are the non-legal political customs that are widely accepted and which sit alongside formal legal rules to shape the functioning of the constitution.)
It’s useful to sketch out the historical situation.
Before FTPA, defeat on either a no confidence motion or on a confidence issue gave the Prime Minister the same two options: resign, or call an election.
Formal no confidence motions said that the Commons had lost confidence in the Government, and it was defeat on such a motion that brought down James Callaghan’s government and led to the 1979 general election. Before Callaghan, Stanley Baldwin, rather than calling an election, took the other option available to him and resigned after defeat on a motion to the same effect in 1924.
The Queen’s Speech (which sets out the Government’s legislative agenda), the Budget, and issues that the Government by choice stakes their authority on are clearly not themselves no confidence motions but they have long been considered by convention to be confidence issues – if the Government lost on these big issues then convention said that they could no longer claim to command the confidence of the House of Commons.
It was defeat on the Budget that removed William Gladstone from office all the way back in 1885, and Ramsey MacDonald resigned after losing a vote on which he had staked his authority in 1924.
So how does FTPA change this?
Let’s first look at formal no confidence motions, which are now governed by section 2 FTPA.
These use the same wording that brought down the Callaghan government – “that this House has no confidence in Her Majesty’s Government”. And this much is clear: if the Government is defeated on a no confidence motion using this wording then a 14-day countdown begins to a general election.
The clock can only be stopped if at some point in those 14 days the Commons passes a second motion with the specific wording “that this House has confidence in Her Majesty’s Government”.
This, in practice, would most likely mean a change in government if an election is to be averted, with someone else getting an opportunity to put together a majority before the clock runs out.
But what about confidence issues – those things that are not themselves no confidence motions but have been treated by convention as if they were?
FTPA says nothing about these confidence issues, so the convention on their significance in terms of the Commons’ confidence in the Government remains intact. And remember that before FTPA defeat for the Government on a confidence issue meant that the Prime Minister had the option of either resigning or calling an election.
As a result of section 3 FTPA, however, the Prime Minister no longer has the ability to call an election – that option has been extinguished. But what does FTPA mean for the other option of resigning?
Nothing. FTPA doesn’t touch on the convention on this, so it remains. If the Government is defeated on the Queen’s Speech then the Prime Minister’s hands are tied by FTPA. They must resign.
So what happens, then, if the Government is defeated on the Queen’s Speech and the Prime Minister resigns? The Cabinet Manual, which is a useful guide to the conventions of government produced by the Cabinet Office, says this:
“Prime Ministers hold office unless and until they resign.
If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government”.
Who the person most likely to be able to command the confidence of the House would be will depend on the circumstances at the time, but it’s likely to be either a leading MP from the governing party or the Leader of the Opposition.
It is ultimately up to the parties in Parliament to figure this out between themselves and communicate it to the Queen.
The vote on the Queen’s Speech is therefore the first big test of whether and for how long Theresa May can survive as Prime Minister.
If she wins then she has cleared the first major hurdle for a minority government and may be safe for some time; if she is defeated, however, then her time in office will come to a swift end and either another Conservative MP or Jeremy Corbyn will become the country’s new Prime Minister.