Clarifying the confidence convention in fixed-term parliaments

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As I discussed in my last post, Britain’s Fixed-term Parliaments Act 2011 means that early elections can only be called if a number of MPs equal to two thirds the number of seats in the House of Commons pass a motion calling for parliament to be dissolved, or if the House of Commons passes a motion of no confidence in the government and, within the next fourteen days, does not pass a motion expressing confidence in the government.

In a column at the New Statesman, Stephen Bush argues that the changes the FTPA brought about will give the Democratic Unionist Party unprecedented leverage over the governing Conservatives. The DUP has agreed to support the Conservatives on matters of confidence and supply. But in Bush’s interpretation, the FTPA means that defeat on the Queen’s Speech, supply bills, and bills otherwise designated as matters of confidence are no longer sufficient to bring down the government. If the DUP is only obligated to support the government on the budget and any explicit motions of no confidence moved by the opposition, they are free to oppose everything else in the government’s legislative program. By sustaining the government in office but threatening to block every attempt to pass legislation, the DUP is in an excellent position to extract major concessions from the Conservatives.

Bush may be correct to claim that the DUP will enjoy unprecedented influence in this parliament, but I think he is badly mistaken in his interpretation of the FTPA’s consequences for the confidence convention. The source of the error is common enough. The reasoning seems to go something like this.

  1. If the House of Commons passes a motion of the following form, then government has lost the confidence of the House: “That this House has no confidence in Her Majesty’s government.”
  2. Losing a vote on the Queen’s Speech or a supply bill does not involve the House passing a resolution of this form.
  3. Therefore, if the government loses a vote on the Queen’s speech or a supply, the government has not lost the confidence of the House.

The reasoning here is logically invalid; it commits the formal fallacy of denying the antecedent (“if P then Q; not P; therefore, not Q”). The FPTA limits the circumstances under which loss of confidence may trigger an election, but it does not limit the circumstances under which the government ought to be regarded as having lost the confidence of the House. The claim that loss of confidence can only be expressed by a motion of the type set out in the FTPA is not supported by the text of the act, the accompanying explanatory notes, the relevant portion of the Cabinet Manual (paragraph 2.19), or the scholarly literature on the subject. If the government is defeated on the Queen’s Speech, a supply bill, an issue otherwise designated as a matter of confidence, or a government-initiated confidence motion, the prime minister must resign and make way for an alternative government or, if none is available, seek dissolution by means of a motion calling for an early election.

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