robert craigA successful Vote of No Confidence 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.

The Leader of the Opposition, Jeremy Corbyn (LOTO), has indicated that at some point after Parliament reconvenes in September – if initial attempts to halt a no-deal Brexit fail – he will bring a Vote of No Confidence (VoNC) under s 2(1)(a) Fixed-term Parliaments Act 2011 (FtPA). His purpose will be to try to prevent it.

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 advent of the FtPA has had a ripple effect on the Appointment Convention. In addition, as Blackburn has argued (Public Law: 2011), it became clear in 2010 that the then Cabinet Secretary’s advice to the Queen and the PM was 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 determination of whom is best placed must now take place in the Commons without involving the Queen in any way.

The Brexit context

Opponents to no deal in the Commons argue that if an attempt by Parliament to pass Cooper-Letwin II (mandating the government to seek a further extension) fails, they would attempt to bring down the Government to try to install someone who would seek an extension to the Article 50 process. This is because opinions differ (see here and here and a letter in the Times) on whether the PM would have an obligation to seek an extension to the Article 50 process if he lost a VoNC.

Under the FtPA, MPs would have 14 days to find someone else to be PM. If they fail, 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. 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.

When the relevant rules are understood properly,  this is purely a question of the numbers in the Commons. 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.

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. This is mistaken. 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, and the 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 320 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. 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 320 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 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 other than Corbyn were to demonstrate that they have the most support from MPs, the Queen might still have discretion to refuse to appoint them unless they can show that they 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 actual test is clear, simple and easily applied and 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 320 Tory/DUP MPs are deducted, that leaves only 319 MPs. That is why the current Tory/DUP grouping has a majority of one.

It might be thought that in order to calculate the necessary figure for an alternative PM to be appointed after a VoNC, Tory MPs who voted against the government in the 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.

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 there is only one way in which an alternative PM can gain sufficient support to create a duty on the incumbent PM to resign. Some Tory MPs would have to resign the whip to support an alternative candidate (which may or may not be Corbyn). Then these ex-Tory MPs would have to pledge their support to the alternative candidate for PM.

If this happened, that would change the numerical calculations. So imagine if, as some have suggested would be needed, 15 Tory MPs were to resign the whip to support the LOTO, or whoever, to be PM. The total remaining Tory/DUP grouping would then be 305 MPs. There would then need to be 306 MPs (15 ex-Tory MPs and 291 other MPs) to go past the total of 305 remaining Tory/DUP MPs.

If Corbyn, or anyone else, could commandeer the support of 306 MPs, he would then be clearly numerically best placed and the PM would have a duty to resign, or be dismissed by the Queen.

Does the alternative PM need an overall majority?

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.

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 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.

 

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.

If the PM won a two-thirds majority vote, Parliament would be dissolved and the PM would set the election date. If he failed, the situation becomes a little complicated because there would be an impasse. The PM would have lost the confidence of the Commons and would therefore be in a very difficult position. He would have a continuing duty either to press the Commons for a dissolution or resign.

This impasse would be created by the FtPA, because the two-thirds majority requirement creates the possibility that a PM can lose the confidence of the Commons without an inevitable dissolution and election, and without there being someone else clearly best placed to command confidence. This is somewhat unfortunate.

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 by Tory MPs nominating an interim alternative PM (pending a proper party leadership election), by internal votes if necessary
  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 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. 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 the 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 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 part-time lecturer in Public Law at LSE. He is currently pursuing a PhD at Durham University considering the role of the royal prerogative in the modern UK constitution.

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