UK Government of National Unity? Here’s how (perhaps)

So, in light of the Brexit deadlock, we need a “Government of National Unity” according to the former UK Prime Minister Sir John Major (and others). But how do we get from here to there? He (and others) are pretty clear that a General Election would be divisive, time-wasting and pointless – not least since the two main parties are as divided amongst themselves as they are between one another. No clear “will of the people” is likely to emerge.

On top of which no one can trust the Prime Minister Boris Johnson and his adviser, Dominic Cummings, not to fiddle the election date for political purpose, such as sneaking Britain out of the EU without a deal.

What are the constitutional options? Parliament, or more specifically, the House of Commons, has the power to bring down a Government in a vote of no confidence. The assumption is that this would probably lead to a General Election (under the Fixed-term Parliaments Act) if no other MP was “best placed” to take over as PM. But there is also a useful traditional power for MPs to vote out the Government and then replace it without an election.

This might be a handy ploy if there really is enough cross-party opposition to Boris Johnson’s government – and majority support among MPs  for some other way out of the Brexit maze. It would mean more than simply “Parliament taking control” with the occasional anti-No Deal vote. If Parliament really wants control over deciding how Britain leaves the EU, it also needs a Government to bring its wishes into effect. 

 

The solution?
Once an election has been called “Parliament is removed from the scene, and unable to act, from its dissolution for an election until, effectively, about ten days afterwards,” as the former parliamentary counsel Sir Stephen Laws noted (The Contest to Take Control of Brexit).

But there is an alternative: a non-FTPA vote of no confidence according to long-standing tradition. Basically this would involve putting a no confidence motion that avoided the specific wording in the Fixed-term Parliaments Act that ultimately triggers an election (“That this House has no confidence in Her Majesty’s Government”).

Traditionally, losing such a vote has put the Prime Minister in the position of either going to the Monarch to recommend a new Government be formed (by someone who commands a majority in the House of Commons, probably the Leader of the Opposition); or calling a General Election in the hope that that will produce a winning party that can form a majority Government.

But there “is no legal or procedural requirement for a government to resign or a dissolution of Parliament to be sought following a [traditional] vote of no confidence”, according this Commons Public Administration background paper (here (pdf). It is simply expected that one of those two things would happen – and it would be politically insupportable if they didn’t.

The paper adds, though, that if such a motion passed nowadays (post-FtPA),

“the Prime Minister would be expected to give notice that he or she will resign, but only when he or she is in a position to recommend to the Sovereign an alternative person to form a new administration”.

So the option of the Prime Minister calling an election would not exist since an early parliamentary election can now only occur according to the provisions of the Act (either a no confidence motion + 14 days; or a vote of two thirds of the membership of the House of Commons).

Using the old-style no-confidence motion would not do this, the paper argues, but, “in the event that no alternative person can be found, it remains available to the House to bring about an early general election under section 2(1) of the Act [the newer FtPA two thirds majority option]”. So, on this analysis, Parliament can cast around for a new PM/Government after a no confidence motion; failing that, leave the old one in place; or else move on to an FtPA process leading to an election.

The benefit of using the old procedure to any cross-party coalition would be that it could avoid the danger of losing the best part of a couple of months to a General Election – during which time the country might slip out of the EU with no deal anyway. The backbenchers’ choice of Prime Minister would, presumably, be more amenable to pursuing the sort of Brexit (or second referendum) that the majority of MPs wanted.

The other benefit might be that the motion of no confidence could actually name a new Prime Minister – which an FtPA motion cannot since it has to comply with the Act’s wording. Since Boris Johnson has made clear already that he sees no one “best placed” to command a majority in the House of Commons (not least given the Liberal Democrats and others are insistently not backing Jeremy Corbyn for the job and not able to come up with another frontrunner). 

So a motion in these terms could be passed: “That this House has no confidence in Her Majesty’s Government and calls on the Leader of the Opposition to form a new interim Government”. This would avoid the FtPA wording, so could not trigger an election by Johnson’s refusing to recommend a new PM to the Queen. But it would also make clear to him and the world that someone else is best place to secure a majority. It would roll a motion of confidence into a motion of no confidence (not possible under the FtPA. Another name could be in the motion if the anti-Johnson opposition could coalesce around one.

Johnson could ignore the will of the Commons on this – but it would be a more outrageous constitutional breach than anything he has done or threatened to do so far. He would remain PM as a dictator, refusing to leave even though there would be a clear preferred Prime Minister (not, incidentally, the same situation when Gordon Brown held on for five days after the 2010 General Election).

Is this at all practical?
Well for starters, it seems unlikely that this chaotic Commons could get its act together to truly agree a way ahead and back a new leader to take them there. Corbyn would be problematic as a leader for Lib Dems and Tory rebels – though veteran Conservative Ken Clarke has said he would back Corbyn if it was the only way to stop No Deal. Former Labour Prime Minister (and no fan of Corbyn) Tony Blair has made a similar point. There would have to be quite a substantial move of Tory MPs willing to bite the bullet and hold their noses – as well as Lib Dems. Other leaders might be possible, but only if Labour agreed – and that seems unlikely in the extreme. Only a no confidence motion moved by the Leader of the Opposition is guaranteed to be put to the Commons (or “guaranteed” in the sense of convention dictating time would be set aside as a matter of priority).

The peeling off of “the Independent Group” from both main parties probably makes it less likely that a broad pro-soft Brexit front could form across Labour-Tory boundaries.

On top of all this, such a move would amount to a parliamentary coup against the Government – and would not be wholly uncontroversial on the streets of Brexit-leaning Britain.

Alternative ways that have been suggested to create a new government, including the “humble address” are examined below.      

• Note, this item has been extracted and adapted from A ‘sovereign’ Parliament hamstrung over Brexit?
• Here’s a handy clip in which Mark Sedwill, Cabinet secretary, talks about a non-FtPA Vote of No Confidence. He is uncertain as to its effect except to say it has “political effect” and does not follow the timeline set out in the FtPA. (Thanks to @BlayneyDeborah for spotting it).
• A tweet here apropos of something else by  a former Commons library clerk  notes in passing: “”can you amend a FTPA motion” to which the answer is “of course, but it deprives it of its statutory effect if adopted”. If right, this would allow an FtPA motion to be tabled but a non-FtPA motion to be coted on.
• Prof Mark Elliott looks at the continuance of the traditional vote of no confidence here: Confidence motions and the FTPA 2018
•  Spinning Hugo also looks at no confidence votes here: May’s duty to resign.   He notes: “Before the FtPA, a Prime Minister who lost an express vote of confidence in the Commons had two options. One option was to call for a dissolution, whilst remaining as Prime Minister pending the outcome of the election. This was the course Callaghan took in 1979. The other is to resign, and advise the sovereign to call on someone who can command the confidence of the Commons.”
• A recent Public Administration and Constitutional Affairs Committee report on “old-style” no confidence motions can be found here (pdf).

Alternatives 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). Several ways have been offered by various people to fill this gap.

A humble address
This is a motion usually put on an Opposition day, nominally and historically for the attention of the Monarch (and used to debate the Queen’s Speech opening a new session of Parliament) but in reality used to get some response from the Government. So the wording is something like this: “That an Humble Address be presented to Her Majesty, that she will be graciously pleased to direct Ministers to …”.

If passed by a majority of MPs or Peers it is considered as an order to the Government, for example to release documents (a humble address for return).  This has been rarely use in the last two centuries, with some occasions in the 19th century, but the Labour opposition used it in 2017 to gain publication of Brexit impact documents. It was used again for similar purposes in 2018 and 2019. (The innovative use is examined in this UCL Constitution Unit piece).

The constitutional lawyer Helen Mountfield QC, in an opinion for the Good Law Project has suggested that it could be used as a means of signalling a name of an alternative prime minister commanding the support of the House of Commons for the Queen to choose in an emergency government or government of national unity scenario. Jolyon Maugham QC, promoting this idea in Prospect, said “that a vote under the FTPA is not a necessary precondition to the replacement of the existing prime minister with another” – implying Mountfield’s proposal is instead of a Vote of No Confidence rather than an attempt to fill the gap in the FtPA.

It is less clear from Mountfield’s opinion that the humble address would be instead of a VoNC, but she is confident that “if a majority of members of the House of Commons were to clearly identify an individual in whom the House has confidence, the Queen would invite that individual to form a new government”. The humble address would also, apparently, allow several bites of the cherry, a number of votes to arrive at, potentially, a compromise candidate to take over (veteran Labour MP Margaret Beckett is particularly touted). Mountfield writes:

“While the constitutional Convention is that the prime minister of the day conveys the views of the House to the Queen, there is nothing to stop the Queen, faced with clear evidence in the form of a humble address or otherwise, as to who commands the confidence of the House, to invite that person to form a new Government without first receiving the resignation of an incumbent prime minister.”

She acknowledges that “there is no precedent for the use of a humble address in this fashion”, but says she is not aware of any reason why it should not be so used. However, it throws up a number of problems, not least, why would the Queen pay any attention to a humble address and unseat her prime minister when the traditional and the statutory means of removing him have not been pursued – one or other form of no confidence vote? And who would put the vote forward? If it was for the leader of the Opposition to do it, would he countenance such an idea if other alternative prime ministers were being mooted?

It would also look very much as if the Queen were being forced to make a political choice, backing the Commons over her Prime Minister. Mountfield acknowledges:

“There is … no authority, or even precedent, concerning what would happen if a prime minister were to refuse to advise the Queen to invite a different individual to form a government, following a motion of this kind.”

But if he didn’t resign “that would place the Queen in an intolerable position. I consider that it is vanishingly unlikely that any prime minister would choose to act in that manner.” Maybe, but we are talking Boris Johnson here. With no precedents to go on, he could tough it out and say: show me the colour of your no confidence vote, then we can talk.  

And how would the multiple bites of the cherry operate? Mountfield suggests these would be by amendments – but what would be the starting point? Would it go like this: “That an Humble Address be presented to Her Majesty, that she will be graciously pleased to direct her First Minister to resign and make way for Jeremy Corbyn.” And if so, why would most Labour MPs support an amendment to insert in a different name? And if amendments for other names fell, would non-Labour members then vote for the substantive motion with the dreaded Corbyn as PM? 

If the humble address were used to fill the FtPA gap, it might fulfil a useful purpose (assuming there is time within the 14 days, given humble addresses require some notice) but it would also risk falling apart owing to lack of agreement on the interim PM, leading to Johnson getting his election. A non-FtPA vote of no confidence would, on the face of it, not lead to that risk.

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. The 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.

Standing Order 24
This is the emergency debate. If agreed by the Speaker (regarding its wording) and by the Commons, it gives MPs 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 and to propose a new prime minister.

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).

On Standing Order 24 Erskine May 

Note on “Parliament takes control”
One earlier plan was to give the matter of Brexit over to the Liaison Committee, which normally has a minor advisory role, involving select committees and reports. The former parliamentary counsel Sir Stephen Laws, finds any such notion, in effect turning the Liaison Committee into a Government, wholly unappealing and, indeed “horrific” (The Contest to Take Control of Brexit):

 “Of course, Parliament is sovereign and can change the balance of influence in its collaboration with government if it chooses. Nevertheless, it would be contrary to the national interest and disastrous for our constitutional settlement for Parliament to take over functions that more appropriately belong to the executive, such as the initiation and coordination of policy formulation and the management of public finances. They are functions that Parliament is ill-equipped to perform effectively and for which it is incapable, as a body, of being held democratic ally accountable in the same way as a government can be.”

 Assuming those like Sir Stephen Laws are right and there is no way of blocking the Johnson juggernaut as it runs down the clock and forces through a no-deal Brexit, what can be done? Laws acknowledges one possibility: the vote of no confidence. But he sees it only in terms of the Fixed-term Parliaments Act version that would be likely to lead to an election. And, he notes

“once a vote of no confidence were passed, the scope for further action is severely limited. The Cabinet manual says that the purdah rules for elections apply after such a vote has been passed. That would stop further changes to the status quo. Thereafter if there is to be an election, Parliament is removed from the scene, and unable to act, from its dissolution for an election until, effectively, about ten days afterwards.”

It therefore seems unclear whether Johnson would delay Brexit to fit in an election or whether he would want to. And the Commons certainly would be in no position to make him.

So can the Commons simply change the Government? Under the FTPA there is a 14-day period for another Government to be formed if that is possible, but failing that, the parliament is dissolved and there must be an election.

 

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