For those British MPs wanting to stop a no-deal Brexit, the options are running out. Among avenues apparently blocked, according to some, is a motion of no confidence in Boris Johnson’s government. The prime minister’s senior adviser, Dominic Cummings, has declared it is too late for such a motion to halt Brexit on 31 October. Even if he loses a motion of no confidence, Johnson can, according to Cummings, refuse to make way for a new Prime Minister and stay on until he decides to have a General Election – probably during or after Brexit on 31 October.
Meanwhile, the bad news for the ant-Brexit proponents of the “government of national unity” is that, even if Johnson follows correct procedure and quits, it is Jeremy Corbyn who should most likely be invited to set up a new government, not a cross-party coalition. There is no parliamentary mechanism for such a coalition to take power unless it is led by Labour.
Flaw in the Fixed-term Parliaments Act
Cummings is a man who has little respect for the British constitution (he wants a new one). So his advice on how the Government should use it (or misuse it) is likely to render it not worth the paper it isn’t written on.
Nevertheless, he makes a point on the vote of no confidence that needs addressing, which is that, on the face of it, there is no legal requirement for the Prime Minister to resign on losing such a vote. Even if there is an alternative prime minister ready in the wings to replace him and even if everyone believes that prime minister has the backing of the Commons, the UK’s unwritten constitution, based on precedents and conventions, arguably leaves the sitting PM in place with a certain amount of discretion about handing over power. (For those who want to skip the background, there is a possible refutation of this argument below; see: Legal action?)
There seems to be a significant gap in the Fixed-term Parliaments Act 2011, an Act brought in to deny prime ministers the long-standing power of calling a General Election on their own whim. In the event of a no confidence motion passing in the House of Commons, there is a 14-day period before a General Election is triggered. The Act says nothing about what should actually happen during this period except that it gives time for the Commons to pass a new motion: “That this House has confidence in Her Majesty’s Government” (S2(5)). Is this a motion in favour of the current Government (a simple change of mind by MPs within the 14 days)? Or in a new Government?
If the latter is an option, how does that new Government come into being? The Act is silent. MPs have no powers to declare a Government into existence, can pass no motions naming a person they would like to form a Government. And there are no powers to remove the sitting Prime Minister, who is the Monarch’s First Minister, not Parliament’s. So if a vote of no confidence is passed, Cummings (or, theoretically, Johnson, as advised by Cummings) will give no quarter, let the clock run down to an inevitable General Election after 14 days – and time that election to ensure any new Government will emerge blinking into a post-apocalyptic Brexit world after 31 October.
In a report by the Commons Public Administration Committee on the Fixed-term Parliaments Act the gap in the legislation was noted:
“What occurs during the 14-day period following a statutory no confidence motion under the FTPA is not addressed by the Act. Dr Blick [Dr Andrew Blick, Director, Centre for British Politics and Government] described the silence of the Act on the 14-day period as being a difficulty that has created confusion”. Para 24
Andrea Leadsom, then Leader of the House, was asked by the Committee whether she thought the Prime Minister was obliged to resign after a no confidence vote. She said:
“The Government, if they have lost a no confidence motion, would have 14 calendar days in which to pass a confidence in the Government motion. If they fail to do that, that then leads to a general election. You are speculating on a very complex alternative, but the fact is that it is for a confidence motion in Her Majesty’s Government within 14 days and you will appreciate that Her Majesty’s Government in spite of having lost a no confidence vote would still be Her Majesty’s Government at that point.” Para 26
This is not an altogether clear answer – but you can be sure the new Leader of the House, Jacob Rees-Mogg, will be very clear-minded in interpreting the rules wholly in favour of whatever gets a no-deal Brexit through. That is why he has been employed in that position. So Johnson will remain in place, apparently with no means of ousting him until the General Election occurs.
Can constitutional conventions help?
Well, there is a convention that the sitting Prime Minister who has lost a vote of no confidence may decide not to call an election (as was within the PM’s power before 2011). Instead the PM might head down the Mall and tender his resignation, advising the Queen, as his last prime ministerial act, that a named other person be appointed in his stead, one “best placed” to form a new government.
This would normally be the leader of the Opposition, who had brought the motion of no confidence.The convention does not seem to require the leader of the Opposition to prove he has the parliamentary numbers before being named. The Queen would invite him to at least try to form a government.
This is what happened in 1924 when Stanley Baldwin had failed to win an overall majority for the Conservatives in the December 1923 election. Labour and Liberals voted down the King’s Speech, so Baldwin did the honorable thing: he resigned and advised the King to call on Ramsay MacDonald, Labour leader, to form a new Government – even though, at 191, Labour had far fewer seats than the Tories (258).
Boris Johnson would not be seen dead doing the honourable thing in similar circumstances. The significant point here is that in 1924 Labour formed a minority Government. MacDonald did not have to prove in advance, by a vote of confidence or any other means, that he would be able to sustain his Government, by coalition or otherwise. He was simply the natural choice to form a new Government as Leader of the Opposition once the old Government was ousted. If his Government failed within days, then so be it. In fact it lasted for more than nine months.
This is exactly the sort of precedent or constitutional convention that Cummings will throw to the winds (in his advice to Johnson). If it’s not stated in law, then it doesn’t have to be observed, as far as he is concerned. So Jeremy Corbyn will not be heading to the Palace in best bib and tucker (MacDonald controversially wore full court dress) to kiss hands with the Queen since Johnson will use what is in effect his discretion to not recognise Corbyn as someone “best placed” to make a viable Prime Minister with the confidence of the House of Commons.
The idea of a cross-party Government of National Unity, the great hope of the anti-Brexit second referendum types, is even further from reality. As noted above, there is no effective method for the Commons to signal to Johnson (even if he were to be looking) that there is an alternative Prime Minister who could command a majority with support from all sides of the House. (See the note at the end of this piece on two possibilities.)
Is Cummings correct?
There have been constitutional lawyers who say that, no, Johnson would not (or is it just should not?) cling to power in this way and should follow the usual procedure of standing down for an alternative. Part of this is a matter of pure political pressure: that he would not want to look like a man breaking the British constitution, in effect holding power via a coup, and once he’s voted out, public opinion would finish the job. Possibly wiser heads in the Conservative party (traditionally men and inevitably in grey suits) would edge him out.
But the public, guided by Cummings’ black ops, might take a different view: that it is the anti-Brexit Commons opposition staging the coup. Two versions of democracy would battle it out: constitutionalism, and the protections against dictatorship that it implies, versus the pure brutal force of the democratic will of the people.
The constitutional argument was put by Meg Russell of the University College London Constitution Unit in an interview with the BBC’s Evan Davis (Monday 5 August). She said that the Prime Minister’s clinging to power would be wrong. It was a matter of “how far people feel bound by the rules as they have been understood”. The system “depends on the Government having confidence [of the Commons]; under all normal circumstances it would do the decent thing and step aside”. It would retain a caretaker role until the new Government took over and “in the interim not do anything controversial, things like take the UK out of the EU”.
Sadly there is not much there that will impress Cummings. For one thing, he would argue that leaving on 31 October is the default which can’t be revoked by the Prime Minister during the two weeks or the election purdah period.
There may, however, be a strong legal argument that Russell is correct, that the lacuna in the Fixed-term Parliaments Act cannot be a mere void but must implicitly have a process for the 14-day period within it.
This argument would be based on the purpose of the Act. It was intended to ensure, as far as possible, that there were fixed 5-year parliaments (the clue’s in the name). So the 14-day period could well be seen as a time to form a new Government according to the old conventions, with the current Government standing aside to let it happen. The only thing that has changed is that the Prime Minister cannot call an election on his/her own say-so.
Otherwise nothing in the Act revokes long-standing constitutional principles.And nothing has ever said a Prime Minister can pick and choose, or choose not to pick, a new potential Prime Minister. And there is nothing in the Act that specifies the Prime Minister can hang on in power for as long as he wants after the 14 days have run down, invulnerable to further action by Parliament. That would be unconscionable.
Conventions may not be justiciable, but since the Act is legislation, a court of law could give an interpretation of its meaning and might reach the conclusion that Johnson must stand down. After all, the Act did not oust the convention – except that part that gave a Prime Minister the right to call an election, which it abolished by clear words.
The alleged “discretion” that Johnson has is not really discretion at all. He only has discretion within the old convention: to advise the Queen on who is best placed to serve as her new Prime Minister. Not to pick and choose nor even refuse to choose. Otherwise he would be acting unconstitutionally.
And there is certainly nothing in the Act to give him a right to hold an election when he pleases should no motion of confidence be passed in a new Government. Once the 14 days are up, he has to go for an election. The words in the Act
(7) If a parliamentary general election is to take place as provided for by subsection (1) or (3), the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister (and, accordingly, the appointed day replaces the day which would otherwise have been the polling day for the next election determined under section 1).
talk of his recommendation, not “a date of his choosing”. His recommendation should conform to the normal timing. The explanatory notes to the subsection 7 say:
“his means that … a suitable date for an election can be set. Dissolution does not follow immediately on the triggering event, but can be timed so that, for example, essential business can be completed or the date of the election can be set to fall on a Thursday.” (Emphasis added)
These, at any rate, might be the sort of arguments used to challenge Johnson’s refusal to resign. But how quickly could that be done? Could an injunction freeze parliamentary business while it is done? Including halting Brexit? Or would Johnson steam ahead and risk a post-hoc court finding that he had won Brexit by overthrowing the British constitution, in effect as a dictator, with no legitimacy whatsoever? We can guess what Dominic Cummings would say.
See also: UK Government of National Unity? Here’s how (perhaps)
And: A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?
Also: Spinning Hugo argues for the duty on a Prime Minister to resign after a no confidence vote here. It also suggests one or two ways of overcoming the problems set out in this post (including below). Among them is a confidence motion but amended to name an alternative Prime Minister. Cunning.
• Public Law for Everyone looks at the options: Can Parliament prevent no deal? This points out: “The Explanatory Notes to the FTPA state that the purpose of section 2(3), which establishes the 14-day window, ‘is to provide an opportunity for an alternative Government to be formed without an election’.”
• A few hours after publication of this post the Times confirmed that No 10 was, indeed, planning to defy a no confidence vote and let the clock run down to a “people v politicians” election.
Note: Are there ways to put pressure on a Prime Minister to leave?
The Fixed-term Parliaments Act should really have inserted some such mechanism – an exploratory Vote of Confidence in a potential new leader rather than the Section 2(5) vote in the sitting Prime Minister (or perhaps someone the PM has recommended to the Queen). A couple of ploys might be tried to fill this gap, but neither really have the practical impact of putting forward an alternative Prime Minister with the confidence of the House.
One is an Early Day Motion. This is a simply motion calling for a debate “at an early day” that sits in the House and is intended to gather signatures. Rarely do they result in debates. Liberal Democrat leader Jo Swinson’s motion declaring no confidence in Johnson was pretty much ignored. It garnerd 14 signatures. To table a motion naming an alternative caretaker Prime Minister to stop a 31 October Brexit would be Quixotic in the extreme. At what point would Johnson have to pay attention to it? Presumably only if it gets 50% + 1 MPs signed up clearly backing another prime ministerial candidate. Coalitions don’t occur that way, especially in parliaments so divided between parties and within parties as this one.
There is also the Standing Order 24 emergency debate. This, if agreed by the Speaker (regarding its wording) and by the Commons, gives you a debate of up to 3 hours on a “neutral” motion merely acknowledging the debate has occurred. It cannot, therefore, be used to assert: “This House calls on the Prime Minister to stand down in favour of X”, but wording might be found to make the point.
Here is Keir Starmer’s Emergency Debate on Article 50 extension in March 2019. The motion is expressed thus: “That this House has considered the matter of the length and purpose of the extension of the Article 50 process requested by the Government.” The vote at the end was simply “put and agreed to”.
Jeremy Corbyn’s motion in December 2018 on the “meaningful vote” was wordier but couched in the same terms:
“That this House has considered the Prime Minister’s unprecedented decision not to proceed with the final two days of debate and the meaningful vote, despite the House’s Order of Tuesday 4 December 2018, and her failure to allow this House to express its view on the Government’s deal or her proposed negotiating objectives, without the agreement of this House.”
He explained: “I called this debate because we should be having the proper vote this evening at 7 o’clock. Instead, the Prime Minister has disappeared, allegedly looking for assurances somewhere, and all of her Ministers here are incapable of telling us when the actual vote will be. Is it to be next week? Is it to be 21 January? When will it be?” The emergency debate was in lieu of a proper debate. In this case there was a division and there were 299 Noes and 0 Ayes – an anti-government protest vote against their own motion, implying, presumably, that no proper, meaningful debate had actually been had. Pro-Government members clearly decided not to play the game. This is favoured by Prof David Howarth who believes a non-neutral motion can be put (but only gives Corbyn’s December 2018 one as an example).
A further suggestion is an amendment to the no confidence motion to put in the name of a preferred cross-party candidate to be Prime Minister. It seems unlikely that the Speaker would allow such a motion since the FTPA wording is fixed. If such an amendment were allowed and won, we would be in the territory of a non-FtPA motion of no confidence (ie the remaining elements of a pre-FTPA MoNC). This would be fine as far as anti-no dealers are concerned. It would make clear the motion of no confidence was also a preliminary motion of confidence in the nominated person – and would not put in place a 14-day period running down to a General Election. It would seem too oblige the PM to stand down and recommend the nominated individual to the Queen. The idea is examined in detail here: https://thinkinglegally.wordpress.com/2019/03/31/uk-government-of-national-unity-heres-how-perhaps/