It is a core convention of the UK constitution that the Government must be able to command the confidence of the House of Commons. This convention governs both the appointment and resignation of Prime Ministers.

The traditional position was that a Government that lost a confidence vote would resign in favour of an alternative administration, or the Prime Minister would request a dissolution from the Queen, triggering a general election. However, the Fixed-term Parliaments Act 2011 removed the prerogative power to dissolve Parliament, giving a limited power to do so instead to the House of Commons. Under the Act there are two ‘triggers’ by which the Commons can bring about an early election; one is a simple vote carried by 2/3rds of its total membership; the other is via a motion of no confidence.

This Insight will look at the constitutional implications of no confidence motions including that tabled by Jeremy Corbyn on 17 December, citing no confidence in the Prime Minister.

The statutory no confidence process

The Fixed-term Parliaments Act 2011 sets a five-year term between general elections, subject to the two ‘triggers’ for an early election above. The ‘no confidence’ trigger is pulled if a motion of no confidence is passed and no alternative Government is confirmed by the Commons within 14 days by means of a positive motion of confidence.

Section 2 of the Act specifies the form of the motion:

“That this House has no confidence in Her Majesty’s Government.”

If this motion is carried, there is a 14 calendar-day period in which a Government may be confirmed in office by a resolution in the form:

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

Under Standing Orders, a debate on a motion arising from an Act is limited to 90 minutes. However, it is likely that a longer debate would be provided on a motion of no confidence.

When was a Government last defeated by a ‘no confidence’ motion?

On 28 March 1979, the Labour Government was defeated on a motion of no confidence by 311 votes to 310. Following the announcement of the result, the Prime Minister, Jim Callaghan, announced that he would request a dissolution of Parliament and a general election.

What happens in the 14-day period?

The Cabinet Manual says that in the 14-day period: “an alternative Government can be formed from the House of Commons as presently constituted, or the incumbent Government can seek to regain the confidence of the House.”

If an alternative Government is formed, the fact that the second motion must express confidence in ‘Her Majesty’s Government’ means that its leader must have been appointed Prime Minister by the Queen before he or she can test the opinion of the House by putting the second motion.

It is also important to note that, as the then Political and Constitutional Reform Committee said in their report, ‘Government formation post-election’ (at para 31) there must always be a Government. Hence a Prime Minister who resigns their Government either hands power to a successor,or a ‘caretaker’ administration governs until an election is held. The caretaker administration could be headed by the outgoing Prime Minister (as Callaghan did in 1979) or a new Prime Minister appointed by the Queen. The Institute for Government (IfG) notes that:

“…at the point when the previous government has lost a vote of confidence, it may not be obvious that their opponents could themselves win one.”

The IfG points out that a Prime Minister who has lost a vote in such circumstances would have to choose between hanging on and hoping to regain the confidence of the House; or handing over to the leader of the Opposition,even if they seemed unlikely to be able to put together a parliamentary majority.

The Public Administration and Constitutional Affairs Committee’s report The Role of Parliament in the UK Constitution Interim Report – The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011(11 December 2018, HC 1813 2017-19), illustrated both routes for triggering an early general election, under the Act (see below).

Debating a statutory motion of no confidence

It has long been the case that if a no confidence motion was put down by the official Opposition, the Government would provide time for a debate. Erskine May, the authoritative guide to parliamentary practice, states:

“By established convention the Government always accedes to the demand from the Leader of the Opposition to allot a day for the discussion of a motion tabled by the official Opposition which, in the Government’s view, would have the effect of testing the confidence of the House.” [Erskine May, 24th edition, 2011, p.344].

The Government was not expected to provide time for motions of no confidence tabled by other Opposition parties or by backbench MPs. The Act does not purport to alter any of the above and no such motion has been debated since it was passed.

What happens if a Government does not gain the confidence of the House of Commons in the 14-day period?

If a new Government cannot be formed within this time period, an early general election will take place and dissolution is triggered. There is no provision for an extension of the 14-day period. Dissolution need not follow immediately on a triggering event, as section 2(7) allows for the Prime Minister to recommend a suitable polling day to the Crown. A proclamation for a new Parliament can then be issued.

Other circumstances in which a Government might resign

The Act does not address other, traditional means of expressing no confidence in the Government; these include passing motions of censure or voting to reject the Budget or Queen’s Speech. A motion of no confidence could also be put down that used different wording from that specified under the Act, and so did not fall under it. The Act also does not alter the ability of a Prime Minister to resign their Government or office if they believe they have lost the confidence of the House. In all the above situations however, no early election would take place unless and until one of the two ‘triggers’ in the Act were activated.

Motion of no confidence in the Prime Minister

On 17 December 2018, Jeremy Corbyn tabled a motion, which stated, “That this House has no confidence in the Prime Minister due to her failure” to allow the meaningful vote to go ahead at this time. His motion does not use the form of words specified in the Fixed-term Parliaments Act 2011 and hence does not engage that Act.

Although it expresses no confidence, it does so in the Prime Minister. The Government has not provided time for a debate, as it would do for a motion of no confidence in the Government. Erskine May says that motions critical of ministers: “have not been treated as falling within” the “established convention” referred to above.

Source: The Role of Parliament in the UK Constitution Interim Report – The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011 (11 December 2018, HC 1813 2017-19).

About the authors: Richard Kelly is a Senior Library Clerk at the House of Commons Library, specialising in parliamentary procedure. Gavin Phillipson is a Parliamentary Academic Fellow working in the House of Commons Library.