robert craigA successful Vote of No Confidence (VoNC) in the government is a seismic political event. It is also extremely rare. As a result, the rules governing the subsequent constitutional steps are perhaps less well understood than they should be. Robert Craig (LSE) attempts to set out a route map for what must happen after a successful VoNC in the light of two important constitutional changes in the last decade that are considered below.

The drumbeat for a VoNC is growing louder. The Leader of the Opposition, Jeremy Corbyn (LOTO), has indicated that he could soon bring a VoNC under s 2(1)(a) Fixed-term Parliaments Act 2011 (FtPA).

Historically, the incumbent prime minister faced two possible options in the event of a successful VoNC. He had a duty to seek a dissolution from the Queen, or he could have a duty to resign if there was someone else best placed to command the confidence of the House of Commons.

These options were mirrored by the Queen’s discretion to refuse to dissolve Parliament and dismiss, or accept the resignation, of a PM where she believed that there was someone else best placed to command the confidence of the Commons. The Queen would then appoint that person as PM. She had a discretion to determine who that might be and a duty to appoint him. This constitutional norm could perhaps be labelled the Appointment Convention.

Two changes to the relevant conventions

The most important constitutional change to note is the advent of the FtPA. This has had a ripple effect on the Appointment Convention. The second important recent change, as Blackburn has argued (Public Law: 2011), is that it became clear in 2010 following the advice of the then Cabinet Secretary to the Queen and the PM, that ‘the Queen has no active role to play in a hung Parliament situation’. All sides concurred with this advice.

The effect of these changes is that the PM’s two potential duties set out above are now owed to the Commons, not to the Queen. Even after the FtPA, the PM still has a duty to seek a dissolution in the event of a statutory VoNC. This can be done either by waiting 14 days or by actively seeking a general election from the Commons (rather than HMQ) under s 2(1) FtPA.

2(1) An early parliamentary general election is to take place if—

(b) …the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).

The second change to the conventions means that the Appointment Convention should be adjusted to account for what might usefully be described as the Elizabethan Codicil. It could be summarised as follows:

The Queen has a duty to appoint as PM the MP best placed to command the confidence of the Commons. That duty only arises once it is clear who is best placed. The Queen has no residual discretion.

It is suggested that the ultimate determination of whom is best placed must now take place in the Commons. The politicians must sort it out, either through negotiations between the parties or, if all else fails, on the floor of the House.

The Brexit context

Opponents of no deal in the Commons have said that they may attempt to bring down the government to try to install someone who would definitely seek the extension to the Article 5 process mandated in the Benn Act. There are numerous swirling political factors that could impact on whether a VoNC would be successful that are beyond the scope of this blog which only deals with what could happen if a VoNC were successfully passed.

Under the FtPA, MPs would have 14 days to find someone else to be PM if a VoNC succeeded. If they fail to install a new PM, the incumbent PM would remain in post and set the date for an election, if he cannot win a Vote of Confidence.

The only way to replace the current PM is if the Commons were to make clear that there was someone else best placed to command the confidence of the House. The Queen has no residual discretion to intervene. This blog suggests that she has a duty to dismiss, or accept the resignation, of the incumbent PM if, and only if, it is clear that there is someone else best placed to command the confidence of the House.

If this analysis is accepted, I suggest that this issue can be determined purely by considering the numbers of MPs supporting the potential candidate in the Commons. If this is correct, then the Queen does not need to exercise any discretion in determining if she has a duty to dismiss, or accept the resignation, of the PM and then appoint a new PM. It is simply a question of numbers.

When would the PM have a duty to resign?

It might be thought that since there must always be someone who is best placed after the PM, the PM always has a duty to resign if a VoNC is lost. This is mistaken. In the current scenario, any alternative candidate must be clearly best placed, by comparison with the total support for the Tory/DUP grouping, before there is any duty to resign.

Some people argue that if a PM loses the confidence of the Commons, the Queen must send for the LOTO. The Shadow Chancellor appears to think it would be appropriate to send Corbyn to the Palace in a taxi. He is wrong about that. His view appears to be that the role of the LOTO is to be the reserve PM in all circumstances and LOTO is therefore always the best placed person to command confidence after a VoNC.

This view presupposes, mistakenly, that Corbyn is clearly the best placed candidate after a VoNC. He is not, or at least, not necessarily. In the current situation, the LOTO – or any other candidate – is only clearly best placed if he can demonstrate that he has more support than the Tory/DUP whipped total vote. That total is currently 297 MPs.

The reason why the LOTO does not clearly have more support is because even if the PM resigned, that would not mean that the LOTO would suddenly have more supporters than the Tory/DUP vote. The best placed candidate to replace the incumbent PM is always drawn from the largest party of the largest coalition or grouping of MPs. Of course, if the PM does not resign as leader of his party, then there is no vacancy.

The only way Corbyn (or anyone else) could succeed is if he can establish that he can commandeer the support of a sufficient number of other MPs, such that they have more support than the Tory/DUP grouping. If necessary, this could perhaps be done by an Address or, as a last resort, via an Early Day Motion.

If sufficient support to exceed the Tory/DUP total is achieved, the situation is transformed. This is because there is someone else who is clearly best placed to command the confidence of the Commons. This post argues that the leader of the largest party, coalition or grouping must always be called by the Queen (even if they do not command an overall majority). Until the Tory/DUP total of 297 MPs is exceeded, Corbyn, or anyone else, cannot be best placed to command confidence.

If the Tory/DUP total were ever exceeded, the Queen would have a clear duty to dismiss, or accept the resignation, of Boris Johnson and appoint the LOTO (or whoever) as the new PM. She would rightly have no discretion in this situation.

Incidentally, it is mistaken to think that the ex-PM advises or recommends to the Queen who should be the new PM. There is no need – and at the moment of appointment the ex-PM, by definition, has no standing to do so.

Forming a Government?

Some argue that if an MP (such as, say, Margaret Beckett) other than Corbyn were to demonstrate that they have the most support from MPs, the Queen might still have discretion to refuse to appoint her unless she can show that she can form a government with a realistic prospect of running the country for a reasonable period of time. This would be an application of what are known as the Lascelles principles.

But applying the Lascelles principles would be mistaken, not least because it would mean the Queen playing an active role and exercising personal discretion in a highly contentious political situation. This is no longer appropriate since the Elizabethan Codicil. The Lascelles principles are out of date.

The test suggested in this post is clear, simple and easily applied. It is whether there is someone clearly best placed to command the confidence of the Commons in place of the incumbent PM – and that is simply a question of numbers.

If there is no duty to resign, what happens next?

If Corbyn (or any other MP) cannot commandeer more support than the largest party or grouping, then there is no duty on the PM to resign, and no duty imposed on the Queen, because it is not clear who is best placed. In those circumstances, the incumbent PM has a duty to take all steps to press for a dissolution from the Commons until and unless he can regain the confidence of the House (although the idea of regaining the confidence of the Commons is itself somewhat constitutionally questionable as a matter of history).

There are two ways that the PM can seek a dissolution in a VoNC scenario under the FtPA. The first is to bring forward a motion under the s 2(1) FtPA procedure. The second is to wait until the statutory 14-day period runs out.

The only other option for the PM is to win a Vote of Confidence under s 2(3)(b) FtPA.

(3) An early parliamentary general election is also to take place if—

(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).

5) The form of motion for the purposes of subsection (3)(b) is—

“That this House has confidence in Her Majesty’s Government.”

Crunching the numbers further

The total number of MPs is 650. There are seven Sinn Fein MPs and a quad of Speaker and Deputy Speakers. That leaves 639 MPs. Once the 297 Tory/DUP MPs are deducted, that leaves only 342 MPs. That is why the current Tory/DUP grouping is now officially a minority government. In theory, if the opposition parties could identify a single MP behind whom to rally, they could replace the PM.

It might be thought that in order to calculate the necessary figure for an alternative PM to be appointed after a VoNC, any Tory MPs who voted against the government in such a VoNC should be excluded from the Tory/DUP total. This would be mistaken. Indeed, some pro-Brexit Labour MPs, or others, might vote for the government in a VoNC. A VoNC is not a definitive vote of support for or against any alternative candidate for PM.

I suggest that the true test for Corbyn, or any other candidate, must be that their total support must exceed the total number of MPs who continue to take the Tory/DUP whip. (It would also, incidentally, determine which side of the House MPs would have to sit if there was a change in PM.) This means that in order for an alternative PM to gain sufficient support to create a duty on the incumbent PM to resign, there must be 298 MPs who support that alternative candidate in the current scenario. This may possibly include some former Tory MPs who have either resigned the whip or had it removed. The alternative candidate may or may not be Corbyn.

Currently, he has the support of 245 Labour MPs who take the Labour whip. There are 35 SNP MPs who might also support him. That makes 280 MPs. There are also 18 Lib Dem MPs. If they supported Corbyn, that would make 298 MPs which is more than the Tory/DUP total, without even mentioning the Independent Conservative MPs (22), The Independent Group for Change (5), Plaid Cymru (4), Green (1) and other independent MPs (12).

If Corbyn, or anyone else, could commandeer the support of 298 MPs, I suggest that he or she would then be clearly numerically best placed to command the confidence of the House and the PM would have a duty to resign, or be dismissed by the Queen.

I emphasise that this claim is not universally agreed amongst experts. There is a respectable alternative argument that unless an alternative PM can command an overall majority, then the PM does not have a duty to resign and the Queen does not have a duty to dismiss him. I think this would mistakenly overlook the long history of minority governments in this country, and would permit a zombie government wrongly to cling on to power. To be clear, then, the proposals here are offered as potentially providing a clear set of non-discretionary rules that could determine numerous, if not all, of the potentially contested scenarios that I can currently envisage – but these rules are, and would be, contested by others.

Does the alternative PM need an overall majority?

In my opinion, the answer is a clear ‘No’.

The numerical example above illustrates that a grouping or party may have sufficient support to mean that the incumbent has a duty to resign without the new PM having sufficient numbers for an overall majority. This happened in 2010 when David Cameron won 306 seats and was appointed following the resignation of Gordon Brown, who had 258. Cameron’s appointment as PM predated the subsequent Coalition (not by very long, but the details matter a great deal in these circumstances).

If an alternative PM was appointed after a VoNC under the FtPA, he would need to win a Vote of Confidence to avert a general election. It is entirely possible that a new PM could be appointed, lose (or not even bring) a Vote of Confidence, set the election date, and remain as PM for the duration of the election period.

Bringing a VoNC

The Commons Library quotes Erskine May as authority for the convention that the government must make time in the Commons for a VoNC brought by the LOTO. There is some doubt whether this now only applies to a statutory VoNC. (It is worth mentioning that there is no legal or other requirement for it to be the LOTO who brings a VoNC.)

If the government takes a restrictive view of the convention, it may mean that procedural machinations by other MPs, such as trying to suspend Standing Order No. 14 (which gives the government control of Commons business) would be necessary, if Corbyn was reluctant to pursue the formal route but the House still wanted to bring a VoNC under the FtPA or otherwise. On the other hand, it is becoming increasingly clear that the government would welcome a VoNC in order to bring about a general election and might even make time for such a vote brought by someone other than Corbyn.

 

What if the VoNC is not compliant with the FtPA wording?

Some have argued that a non-statutory VoNC would be better than an FtPA version, because a VoNC under the FtPA could put considerable time pressure on MPs seeking to replace the incumbent PM. If a non-statutory VoNC were successful, the principles set out above would be basically the same. The only real difference would be that a no-confidenced PM would have a duty actively to bring a motion under s 2(3) FtPA seeking a two-thirds majority for a dissolution. This would be because he would not be able simply to wait 14 days, and he could not just continue as PM.

Indeed, the active duty to seek a general election via a two-thirds majority precisely describes the current situation where the PM has sought an election twice, but has been rebuffed on each occasion. It is arguable that these two attempts to bring about an election are a function of the fact that the Benn Act was made an issue of confidence by the government. The government arguably therefore has a duty to continue to press the House for a general election if it does not wish to resign.

The refusal of the House to grant an election has created an impasse.

This impasse has been caused by the FtPA because the two thirds majority requirement creates the possibility of the loss of confidence of the HoC without an inevitable dissolution and election and without there being someone else clearly best placed to command confidence. This “worst case” scenario, which many thought could never happen, has now been created by the Brexit process.

The impasse could potentially be resolved in a number of ways.

  1. The PM could resign by choice, thus creating a vacancy which would have to be filled immediately. I deal with this scenario in detail in another blog available here
  2. The PM could make further attempts to secure a two-thirds majority vote for a dissolution under s 2(1) FtPA
  3. There could be attempts, or further attempts, by Corbyn or others to demonstrate that they are best placed to command the confidence of the Commons by having greater numerical support than the Tory/DUP grouping. If necessary, this may require votes on motion(s) to the effect that ‘This House believes [X] is best placed to command the confidence of the Commons’
  4. In extremis, the government could attempt to propose and pass a bill dissolving Parliament and setting the date for a general election
  5. In further extremis, any MP (including Corbyn) could bring a statutory VoNC under the FtPA. The government should give time to such a motion precisely because it could provide a pathway for a dissolution after 14 days – which it would remain the PM’s duty to pursue if he does not wish to resign. Of course, if the PM is able to win that FtPA VoNC, that would be sufficient to demonstrate the (somewhat constitutionally novel) restoration of the confidence of the House. Such a VoNC under the FtPA could even be brought by an MP from the governing party or grouping.

Conclusion

This post has sought to set out a route map in the event that a VoNC is successfully brought in the near future. There is also a flowchart available above which some may find more useful. In short, a successful VoNC would only result in a new PM if an alternative candidate could demonstrate greater support than the total MPs who make up the whipped vote of the Tory/DUP grouping. If no candidate succeeded, an election would almost inevitably follow. Under s 2(7) FtPA, the PM would set the date of that election.

This post was updated on 30 September 2019. It represents the views of the author and not those of the Brexit blog, nor LSE. The author would like to thank Gavin Phillipson, Richard Ekins and Mark Elliott for their helpful comments on previous drafts.

Robert Craig is a Guest Teacher in the Department of Law at LSE. He is currently pursuing a PhD at the University of Bristol considering the role of the royal prerogative in the modern UK constitution.

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