Policy Echange - PM need not resign on losing confidence vote

28 Oct 2019 02:27 PM

Under the Fixed Term Parliaments Act, if the government loses a vote of no confidence (VONC), there are 14 days in which either the incumbent government or a new government appointed by the Queen may attempt to win a vote of confidence. Otherwise, the Act requires the dissolution of Parliament and an early election. 

However, contrary to some assertions, there is no legal or constitutional obligation on the Prime Minister to resign and make way for the formation of an alternative government. Instead, he might choose to remain in office throughout the period in order to bring about an early general election.  Whether this is justifiable is a political question, not a legal question, and is absolutely not a matter for the courts to decide. In his new paper, The Fixed Term Parliaments Act and the Next Election, Policy Exchange’s Senior Fellow and former First Parliamentary Counsel Sir Stephen Laws clearly shows that:

• The PM could pursue an election by remaining in office during the 14 day period and would have a good argument for not resigning.
• In the present circumstances, any alternative government proposed during this period would fail to satisfy the Lascelles principles under which the Queen could, before 2011, refuse dissolution – and would in any case need to offer a rapid election.
• An offer of a second referendum instead of an election would not compensate for the absence of a workable and effective programme for government during the months it would take to organise a referendum.
• Where an election is triggered by a no confidence crisis the incumbent government is entitled to retain office until the election result is known.
• The courts should not involve themselves in the political question of whether or not the Prime Minister should resign. A deliberate decision was made in 2011 not to legislate about what happens during the 14 day period after VONC – precisely to avoid litigation by ensuring that it should not be a matter for the courts. Any intervention by the courts would therefore be in defiance of the express intentions of the legislators.
• Politicians on all sides have a responsibility not to draw the Queen into the political battle.

Sir Stephen Laws said:

“A vote of no confidence is increasingly likely given the stalemate that has arisen between the government and parliament. Some of the debate about the appropriate response from the Prime Minister and Government to losing a no-confidence vote has been intemperate and extravagantly hyperbolic.

“The Prime Minister could legitimately argue, both constitutionally and politically, that he remains entitled to pursue the dissolution and election option by remaining in office for 14 days after a no confidence vote.

“What is clear is that the matter of confidence in the government must be resolved in Parliament and not through the Courts. The Fixed Term Parliaments Act was deliberately framed in a way that left the least possible scope for judicial intervention.

“The government’s dependence on the confidence of the House of Commons is fundamental to our parliamentary democracy and traditions. The situation that has now been developed and allows the Commons to withdraw the privileges of government without withdrawing confidence is utterly corrosive of any sensible form of coherent national governance.”

In a Foreword to Sir Stephen’s “magisterial study”, former leader of the House of Lords Lord Strathclyde writes:

“Sir Stephen makes an utterly convincing case that it would be illegitimate for the courts to attempt to enforce their perception of ideal constitutional practice in the aftermath of a vote of no confidence, ordering the Prime Minister to resign or attempting to quash a dissolution.

“It is clear that Parliament in 2011 made a deliberate choice not to legislate about what should happen during the 14-day period after the Government loses a vote of no-confidence. That was certainly my understanding of the Bill when it was moved through the House of Lords, an understanding very widely shared.

“The political crisis in which the UK finds itself has been worsened by the abuse of constitutional practice, very often by those proclaiming themselves the constitution’s true defenders.

“The next episode may be an attempt to weaponise the Fixed-term Parliaments Act, giving the Act a legal meaning it cannot bear and asserting implications for constitutional practice that are at best contestable and at worst pernicious. This constitutional sophistry needs to be confronted.”

Notes to Editors

For further information, or for broadcast bids to speak to Sir Stephen Laws, contact Amy Gray on 07776124660.

If an election is triggered, the date of the election is then chosen by the Prime Minister and the date of the dissolution of Parliament is fixed by law by reference to that date. The earliest election date that can be chosen is the 27th working day after the end of the 14- day period. The law requires there to be a period of 25 working days (so not counting Saturdays or Sundays, or bank holidays) beginning with the dissolution of Parliament and ending with the day before election day. There has to be at least one day (but it need not be a working day) between the last day of the 14-day period and the first of the 25 working days for the issue of the Royal proclamation fixing election day.