The Joint Committee on the Fixed-term Parliaments Act reported on 18 March 2021. What follows is a brief summary of its core conclusions. As I have said previously on this blog, it is essential that the Committee’s recommendations and view of the constitutional situation inform debate of the Fixed-term Parliaments Act 2011 (Repeal) Bill as it proceeds through both Houses.
1. The Committee stated that it needed to carry out its statutory duty to review the working of the 2011 Act as well as considering the government’s draft Repeal Bill.
2. The Committee is clear that the 2011 Act was primarily introduced to bolster the Conservative/Liberal Democrat Coalition. It lists the defects in the Act including the super-majority provision, the no-confidence procedure and the 14-day period; which have led to parliamentary grid-lock and an obscuring of pre-existing conventions on dissolution.
3. The Committee considers that the government’s intention to repeal the 2011 Act is clear enough, though it recommends:
a) better definition of the ouster Clause,
b) making clear the role of the monarch and
c) a working party needs to be established to review the 25-day statutory period for an election with a view to shortening it.
4. The Committee concludes that a maximum parliamentary term should be five years from the date of dissolution of the previous parliament.
5. The Committee sets out principles and conventions on confidence, dissolution and government formation, with protection for any motion of no confidence tabled by the Leader of the Opposition, as set out in full below.
Box 1: Principles and conventions on Confidence, dissolution, government formation
|Paramountcy of confidence in the UK political system |
1. The UK is a Parliamentary democracy, and its Government is not directly elected. It is the administration, by convention drawn from Parliament, that can best command the confidence of the elected House of Commons. The ability of a Government to command the confidence of the elected House of Commons is central to its authority to govern.
Principles on confidence
2. Commanding confidence is not the same as having a majority or winning every vote.
3. Where a Government lacks the confidence of the Commons it must either secure a refreshed mandate from the electorate, or it must instead allow a viable alternative Government to take its place.
House of Commons expression of confidence in the Government
4. A lack of confidence in the Government of the day can be expressed by the House of Commons in four distinct ways:
a) Defeating the Government on an amendment to the Queen’s Speech;
b) Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and Estimates process;
c) Defeating the Government on a vote in the House of Commons where that Government has publicly designated it a “matter of confidence”; or
d) Defeating the Government on a motion, in terms, that states whether the House has confidence, or does not have confidence, in the Government.
5. Other than the examples above, votes in the House of Commons are generally not regarded, in and of themselves, as being matters of confidence in the Government, whether or not the Government is defeated.
Conventions on ensuring that confidence can be tested
6. If the Leader of the Opposition tables a motion that would test the House of Commons’ confidence in the Government of the day the Government should enable it to be debated, in Government time, for at least a day’s debate, as soon as possible, and preferably the next sitting day.
7. So that there is no uncertainty as to whether Government time has to be made for a confidence motion, the Leader of the Opposition should ensure that the wording of the motion is clear: that it does indeed intend to test the House’s confidence in the Government, rather than simply to censure a policy or member of the Government.
When a Government loses confidence of the House
8. If the Government appears to have lost the confidence of the House of Commons, it is open to the Prime Minister to pursue one of two courses of action:
a) to offer the resignation of the Government; or
b) to request a dissolution from the Monarch.
9. It is likely to be more appropriate for the Prime Minister to resign, rather than to request a dissolution, if:
• There has very recently been a general election;
• The Prime Minister’s party commands a majority and another person is elected to lead the party; or
• It appears that another person might command the confidence of the House.
10. The Prime Minister may request dissolution from the Monarch and it would be extremely unusual for the Monarch to decline such a request unless it were improper.
11. The following could be taken into account in considering the propriety of a request:
• The length of time since the last election;
• whether it appears that an alternative government, commanding the confidence of the House of Commons, could be formed and could govern with a working majority for a reasonable period of time.
12. In such cases the Monarch may wish to satisfy him or herself that no alternative government can credibly be formed before granting a dissolution request.
13. A Prime Minister is expected to refrain from asking for dissolutions rather than the Monarch be put in the position of having to refuse a request that ought not to have been made.
Principles on government formation
14. There are three distinct circumstances in which there might be a change of Government under the UK’s constitutional arrangements:
a) the incumbent Government no longer commands the confidence of the House of Commons following a general election;
b) the incumbent Government had the confidence of the House of Commons earlier in a Parliamentary term, but has subsequently lost that confidence;
c) the incumbent Government has retained the confidence of the House of Commons in the course of a Parliament, but the Prime Minister has stepped down as leader of their party and a new leader has been appointed.
Changes of Government following a General Election
15. If the largest party in the incumbent government wins a single party majority at a General Election, it will normally continue in Government. Equally, if another party wins an outright majority at the General Election, the Prime Minister is expected immediately to offer his or her resignation to the Monarch. The expectation will then be that leader of the largest party will be invited to form a Government.
Hung Parliaments and government formation
16. If, following a general election, a range of different administrations could be formed, the incumbent Government is expected to stay in office as a caretaker Government. This arrangement remains in place while discussions take place between political parties to identify the person best placed to form a Government. It is expected that the Monarch would not be involved in such discussions but that the Palace would be kept informed. As soon as it becomes clear who is best placed to form a Government, if that person is not the incumbent Prime Minister, he or she should resign and that alternative person will be invited to form a Government.
17. If a General Election produces a hung Parliament and it is unclear who is best placed to command the confidence of the House of Commons, the incumbent Prime Minister is entitled to seek the confidence of the House by bringing forward a Queen’s Speech. However, if the Government is then defeated on that Queen’s Speech, or an amendment to it, the Prime Minister is expected immediately to resign.
18. When coalition governments are being formed, smaller parties to that agreement may want reassurances that an early election will not be sought unilaterally by the Prime Minister of the day. If such assurances have been given, a request ought not normally to be made for a dissolution unless and until it is clear that no viable alternative government could be formed.
Changes of Government during a Parliament
19. A Government can lose its working majority without necessarily losing the confidence of the House of Commons. If, however, a Government does not simply lose its majority, but also loses the confidence of the House, it may be expected to resign. This, and the situation in which party leadership changes, are dealt with in paragraphs 8 to 10 above.
The role of the Monarch
20. Any system in which key matters of elections and government formation are formally decided by the Monarch raises sensitivities about the nature of his or her role. Great care should be taken, both by the Prime Minister and other political actors, to ensure that this does not draw the Monarch into party-politics or matters of political controversy. Those disputes should—so far as possible—be resolved by the political process, rather than by any formal decision of the Monarch.
Sir Malcolm Jack was Clerk of the House of Commons from 2006-2011. He is also an academic historian and President of The Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.