Reforming the Vote of Confidence: A Role for the Speaker in the Standing Orders
The confidence convention is a fundamental characteristic of parliamentary government, yet its definition is vague and general. Disappointment in its utility to hold a government to account, its misuse purely for political gain, and the absence of a fair playing field for its use have led to calls for reforms. In this article, the author explores the nature of the vote of confidence, outlines some reasons warranting its reform, reviews some past proposals for reform in Canada and the United Kingdom, and finally proposes his own idea for how to address criticism of its historic and current use in the House of Commons. The author suggests parliamentarians create a standing order which carves out a specific role for the Speaker to rule on the appropriateness of considering an upcoming vote as a matter of confidence. Given that the Speaker’s rulings on the vote of confidence could be challenged, they would be advisory in nature and would not interfere with other confidence conventions such as the Crown’s power of dissolution. However, its use for pure political gain would be weakened; public guidelines developed by the Speaker could better textualize the meaning of the vote of confidence and contribute to civic literacy; order and decorum would be restored when confidence issues arise, and there would be no danger of possible justiciability of the courts. He concludes by suggesting this reform would go a long way in strengthening the Commons over the Executive.
Gary William O’Brien
Gary William O’Brien is a former Clerk of the Senate.
The confidence convention – the requirement that a government must maintain the support of the majority of members in the House of Commons to continue to govern – is described as a “fundamental characteristic of parliamentary government.”1 Aucoin, Smith and Dinsdale write that it “drives the system of responsible government … Every other rule is a logical derivation from it or must conform to it.”2 Given its importance to parliament, one would think the confidence convention is clearly understood and non-controversial. Yet its definition is relatively vague and general, based on tradition as opposed to a statute or standing order. R. MacGregor Dawson suggested it rested on an “airy foundation…it is denied any explicit description….”3 Its impreciseness has led to disagreement, criticism, derision of parliament, and political crises. Its disappointment as a procedure for holding governments to account, its use for pure political gain, and its lack of a level playing field has led to calls for its reform.
This article briefly reviews some of the proposals to reform the vote of confidence, that is, how confidence is expressed and its implications, in both the Canadian and British parliaments. It concludes with a specific recommendation on how the legitimacy of the vote of confidence can be enhanced in the Parliament of Canada.
The Nature of the Vote of Confidence and the Need for Reform
The confidence convention stems from the prerogative power of the Crown to appoint ministers but with the corollary that to do so, governments must rely on parliamentary support. It originated from eighteenth century attempts by the British House of Commons to challenge the Crown’s right to be solely responsible for naming and removing ministers. By the nineteenth century a convention had been established that the Crown’s right to appoint ministers was limited by the necessity the government maintain the House’s confidence.4
Two points must be made regarding its nature. First, since the vote of confidence defines government-House of Commons relations, its importance as a check and accountability mechanism cannot be over-stressed. As Rodney Brazier points out, it bestows legitimacy for government actions since in theory “it obliges every government to defend itself, explain its policies, and justify its actions, to its own backbenchers, to the opposition parties, and through them to the country.”5
Some, however, see this relationship as ambiguous, calling the effectiveness of the confidence vote into question. Nevil Johnson writes:
It is the job of parliament to challenge the government, to control it, and call its members to account. But the rise of disciplined political parties, after claiming a mandate to act by virtue of an electoral majority, has introduced a profound ambiguity into the relationship between parliament and the government. Is the House of Commons there to confer authority on the executive and to exercise a critical and controlling function in relationship to its members, or is its main function now to facilitate majority rule and the fulfillment of promises made by parties in an election? 6
Effective and legitimate government depends on the cabinet’s ability to govern, which largely rests on its management of members. On the other hand, parliament has a duty to demand accountability. This clash, between executive dominance and parliament’s role as a representative legislature, impinges on the practice of the vote of confidence. The challenge Dawn Oliver sees is to ensure that constitutional conventions, like the vote of confidence, allow parliament to effectively impose ministerial accountability:
…the operation of these conventions has altered over the years and this has raised issues in turn about exactly what the conventions making up individual responsibility require, who owns the rules, and how effective Parliament can hope to be in holding Ministers to account. These questions in turn raise issues as to whether alternative or supplementary accountability mechanisms are required…and whether and how Parliament can be reformed so as to enable it to hold Ministers to account adequately.7
Second, the vote of confidence is fundamentally political. While there is no legal requirement for a government to resign or seek a dissolution if it loses a confidence vote, it takes these actions in expectation of the political sanctions which may eventually follow. Philip Norton writes that if a government loses a vote of censure “it would be virtually impossible to continue governing, since it was unlikely it would be able to get the House to vote for supply.”8 Its exercise, Margaret Demerieux feels, “is a political matter, to be adjudged by political principles or by its political consequences.”9
Given its political nature, it can be abused. For example, with no formal constraint, a government can declare any vote one of confidence, allowing it to strong-arm members to maximize its voting strength. In minority situations, it can pressure the opposition to backtrack in its duty to demand accountability for fear of a general election (if the government believes it is in a position to win this election). Norton has called this tactic “the parliamentary nuclear option.”10
A government’s first constitutional duty is to be accountable to parliament for its legislation and policies. But, as F.F. Ridley writes:
…possession of power may allow those who possess it to manipulate the system, to influence the economy so that it looks healthier just as the election clock is about to strike, perhaps also to fix the striking of the clock… In a democracy, should not the constitution try to ensure something a little like a balanced playing field, should there not be rules to check the use of power to keep power?11
Options for Reform: Parliamentary Proposals
Pierre Trudeau’s The Constitution and the People of Canada (1969)
This publication presented proposals for formal amendments to the British North America Act, 1867. Among its many recommendations, it noted that important aspects of the parliamentary system were based on unwritten conventions, giving “a highly inaccurate picture of our system of government.” A new constitution must “enhance public appreciation and understanding of their essential characteristics.” According to Trudeau, the conditions and means by which the prime minister and other ministers assume and leave office required definition and the vote of confidence needed reform.
Its proposals undoubtedly stemmed from the events the year before when the Pearson government was defeated on the third reading of an income tax bill. As Andrew Heard has noted, throughout much of the 20th century, “governments behaved as if every vote was a vote of confidence.”12 They were perhaps guided by Sir John G. Bourinot’s 1895 statement. The former Clerk of the House of Commons wrote:
[I]n case a government is defeated in parliament, the premier must either resign or else convince the governor general he is entitled to a dissolution or general election on the grounds that the vote of censure does not represent the sentiment of the country.13
Certainly, Mackenzie King believed governments could not stay in office if defeated. As he told the House of Commons in 1923:
Government measures are brought down in the light of carefully matured policy, and an administration that brings down its legislation in any other way would not be entitled to expect from parliament a second opportunity once it meets with defeat on a matter which it is prepared to say to the House it regards as all important to the public interest.14
In 1968, Bourinot’s mechanistic view of the vote of confidence became a constitutional myth. On February 19, the minority Pearson government lost a bill (C-193) to increase income taxes at third reading by a margin of 84 to 82. It then brought in a motion saying the House did not regard the vote on Bill C-193 as a vote of non-confidence in the government. After a five-day debate, the motion carried 138 to 119.15
The 1969 paper proposed that a written text be included in the constitution specifying the circumstances in which a prime minister would be required to resign:
… the Prime Minister should be able to resign and should be required to do so if he fails to obtain a vote of confidence in the House of Commons at a time when the Governor General considers that he is not entitled to a dissolution of Parliament or if, in a general election, another person has obtained the support of a clear majority of the House of Commons.
What constitutes confidence, “would be left to the House of Commons to determine,” not the government. The paper did not go into detail as to what that determination would be, or the factors involved. Nor did it comment on the impact of potentially involving the courts on questions before parliament. While the paper stimulated discussion and action on many aspects of constitutional reform in Canada, the confidence convention continued unchanged.
Special Committee on the Reform of the House of Commons, 1984-5 (McGrath Committee)
This seven-member committee was appointed in 1984 to examine the powers, procedures, and practices of the House of Commons. The confidence convention was among the many issues addressed. The committee concluded that the concept of confidence be relaxed, particularly the notion that every matter challenges the confidence in government. This was unnecessary since the matter of confidence had “really been settled by the electorate.”
The committee believed fundamental reform went beyond institutional change. What was required was a change in the party system. Members must insist the discipline of party machinery be loosened and more free votes be held. It called for attitudinal changes on the part of governments, the leadership of parties, and private members.
In retrospect, the McGrath Committee had little impact on weakening party discipline or limiting the government’s right of compete discretion in deciding whether it had kept the confidence of the House. C.E.S. (Ned) Franks wrote:
By October 1986 nothing had been done to change the confidence convention. Nor is that likely to occur. The change from tight discipline to free votes would mean a substantial shift in power from parties to the individual MPs…The (McGrath) committee wanted a change in attitude to come first and cause a shift in power. In effect, it was asking for a grace-and-favour gift from the parties, not for recognition of the reality of a new, enhanced authenticity and power base for Canadian MPs – for which there is no evidence, and which in fact does not exist.16
The Cameron-Clegg Fixed-term Parliaments Act 2011 (FTPA)
As in Canada, before the passage of the FTPA, confidence votes in the British parliament were based on convention. The coalition government of Conservatives and Liberal Democrats under leaders David Cameron and Nick Clegg, respectively, resolved to put the convention on a statutory basis while keeping the principle that a government’s authority derives from possessing the confidence of the House.
The ensuing act, which MP Peter Tapsell called “almost revolutionary in concept,”17 described the conditions for a general election following the loss of an explicitly worded motion of no confidence. It set the date for general elections five years hence. An earlier election would be held if a supermajority of two-thirds voted in favour, or if a government lost a vote of no confidence.
The coalition, whose main spokesperson was Deputy Prime Minister Nick Clegg, advanced various reasons as to why reform was needed:
- The FTPA was designed to prevent a government from seeking a general election for its own political reasons. Clegg told the House: “The Bill has a single, clear purpose: to introduce fixed-term Parliaments to the United Kingdom to remove the right of a Prime Minister to seek the Dissolution of Parliament for pure political gain… [F]or the first time in our history the timing of general elections will not be a plaything of Governments … Crucially, if, for some reason, there is a need for Parliament to dissolve early, that will be up to the House of Commons to decide.”
- The act established, through statute, a neutral enforcement mechanism.
- The act weakened the politicization of the vote of confidence by removing the prime minister’s power to maximise voting loyalty of government backbenchers. The prime minister could no longer designate a vote as one of confidence and thus precipitate an election if defeated.18
- It separated losing a vote of key policy matter from losing a vote of confidence. As the Lords Select Committee noted, it was now possible “for the Government to retain the confidence of the House of Commons in a statutory sense – winning a vote on a motion of no confidence- while having lost it in the political sense of lacking support for a key part of its political agenda.”19
The Fixed-term Parliaments Act lasted only 11 years and died unceremoniously in March 2022 when it was repealed without fanfare. It had resulted in unmanageable parliamentary gridlock. While governments remained in power, they had lost control of their ability to legislate and were prevented from seeking a dissolution to allow voters their say. Steven Chaplin observed:
In 2018 and 2019, the British government continued, lost vote after vote on Brexit, yet the House refused to vote non-confidence in the government … Clearly, a blanket rule that confidence can only be determined by the opposition can have unintended consequences that paralyze both Parliament and the government.20
Enhancing the Legitimacy of the Confidence Vote: A Proposal
Reforming the confidence vote has met with little success, either in Canada or the United Kingdom. Some proposals lay beyond the sole capacity of the House of Commons; for example, reforming the party system or changing the electoral system. Adopting practices from other jurisdictions may be resisted as not in accordance with Westminster parliamentary traditions. In the United Kingdom, the 2012 Fixed Term Parliament Act was an embarrassing failure in that it led to the paralysis of government and shook parliament’s credibility. In Canada, there continues to be resistance to the textualization of constitutional conventions, either in the Constitution Act, 1867, the Parliament of Canada Act, or in a proposed cabinet manual. McGrath’s plea for reforming the party system had few results.
As noted earlier by Margaret Demerieux, when exercising the vote of confidence, political self-interest remains a primary consideration. Both government and opposition will continue “playing politics” with votes of confidence. To be successful, reform proposals must seek a way, not to depoliticize the vote of confidence, but to temper its political nature.
Proposed Involvement of the Speaker
A remaining option is to involve the Speaker. Such an idea is usually dismissed out of hand. Bosc and Gagnon state “confidence is not a matter of parliamentary procedure, nor is it something on which the Speaker can be asked to rule.” They provide case law references from such Speakers as Lamoureux and Milliken.21
Yet clearly a supplementary accountability mechanism is required to enable the vote of confidence to better hold ministers to account. Involving the Speaker should at least be considered as an option. While questions of confidence are without doubt political and not legal matters, they cannot a priori be dismissed as nonprocedural for the simple reason they cause disorder and take up valuable time of the House. Points of order on confidence issues lack a neutral arbiter and process to resolve them. More importantly, as it presently stands, the vote of confidence fails to secure acceptance by the actors involved. In theory, constitutional conventions require such acceptance.
While asking Speakers to make definitive rulings on questions of confidence may rightly be beyond the authority of the Speaker, it may be helpful if Speakers could at least provide an opinion on such matters if the objectives of reform are to be better realized. Canadian Speakers have never limited themselves to procedural issues. They are deeply involved in the administration of the House, ceremonial functions, and represent the Parliament of Canada at international conferences and in parliamentary delegations. At times, they have chaired House committees.
The failed 1992 Charlottetown Accord, agreed to unanimously by all federal, provincial, and territorial governments, put ideas forward from “outside the box” in its attempts to revitalize the Parliament of Canada. For example, regarding its recommendation to alter the Senate’s powers over legislation dealing with natural resources and revenue and expenditure bills, the Accord proposed giving the House of Commons Speaker power to use his or her judgment in deciding how bills were to be classified.22 Such power would undoubtedly have had national political impact. Risk of inviting political criticism regarding Speaker decisions was considered less important than establishing a constitutional process for how bills were to be classified.
This article proposes giving the Speaker the duty, through standing order, to make rulings on all points of order regarding the vote of confidence, subject to appeal to the House. In doing so, the Speaker would rely on guidelines of how such power should be exercised, similar in concept to the guidelines developed on the casting vote of the Chair. Given that the Speaker’s rulings on the vote of confidence could be challenged, they would be advisory in nature and would not interfere with other confidence conventions such as the Crown’s power of dissolution. The political interests behind the vote of confidence would not be irreversibly impacted since all members would be free to appeal such rulings.
When making such rulings, a Speaker would take into consideration a variety of factors, such as (i) whether a general election is warranted; (ii) the consequences if the convention is not applied; (iii) whether motions set down on the Order Paper or amendments proposed during the course of debate are implicit motions of confidence; (iv) the need to protect the right of the opposition to hold governments to account and the right of governments to govern; and (v) what would be in the best interests of the House of Commons as the representative of the Canadian people.
The Speaker’s involvement would make the vote of confidence more legitimate. Governments could not unilaterally declare a matter one of confidence without the intervention of the Speaker when points of order are raised. Its use for pure political gain would be weakened. Prime Ministers could still strong-arm members into supporting the government or pressure the opposition to compromise in its demands during legislative bargaining, but to do so they would have to defy the Speaker in the event of an adverse ruling. The public guidelines developed by the Speaker could better textualize the meaning of the vote of confidence and contribute to civic literacy. Order and decorum would be restored when confidence issues arise. There would be no danger of possible justiciability of the courts. In short, the creation of such a standing order would go a long way in strengthening the Commons over the executive.
Notes
1 Marc Bosc and André Gagnon, House of Commons Procedure and Practice, third edition (2017), chapter 2.
2 Peter Aucoin, Jennifer Smith and Geoff Dinsdale, Responsible Government: Clarifying Essentials, Dispelling Myths and Exploring Change (Ottawa: Canadian Centre for Management Development, 2004), p. 19.
3 R. MacGregor Dawson, The Government of Canada, revised by Norman Ward, fifth edition (Toronto: University of Toronto Press, 1970), p. 18.
4 Philip Norton, “The Fixed-term Parliaments Act and Votes of Confidence,” Parliamentary Affairs, Volume 69, Issue 1, January 2016. See also Gary O’Brien, “Origins of the Confidence Convention,” Canadian Parliamentary Review, Autumn, 1984, p. 12.
5 Rodney Brazier, Constitutional Practice (Oxford: Clarendon Press, 1988), pp. 176-7.
6 Nevil Johnson, Reshaping the British Constitution: Essays in Political Interpretation (New York: Palgrave Macmillan, 2004), p. 103.
7 Dawn Oliver, Constitutional Reform in the UK (Oxford: Oxford University Press, 2003), pp. 213-4.
8 Norton, “The Fixed-term Parliaments Act.”
9 Margaret Demerieux, “The Codification of Constitutional Conventions in the Commonwealth Caribbean Constitutions,” The International and Comparative Law Quarterly, 31(2), April 1982, p. 265.
10 Norton, “The Fixed-term Parliaments Act.”
11 F.F. Ridley, “Using Power to Check Power: The Need for Constitutional Checks,” Parliamentary Affairs, 44 (4), October 1991, p. 442.
12 Andrew Heard, “Constitutional Conventions and Parliament,” Canadian Parliamentary Review, Vol. 28, No. 2, 2005, p. 22.
13 Sir J.G. Bourinot, How Canada is Governed, second edition (Toronto: The Copp, Clark Co., 1895), pp. 82-3.
14 House of Commons Debates, February 12, 1923, p. 220.
15 See House of Commons Debates, Feb. 19-28, 1968, pp. 6896-7078. It justified its actions by claiming “what the government will treat as a matter of sufficient importance to demand resignation or dissolution is, primarily, a question for the government.”
16 Franks, The Parliament of Canada, p. 140.
17 U.K. House of Commons Debates, September 13, 2010.
18 Norton, “The Fixed-term Parliaments Act.”
19 United Kingdom. House of Lords Select Committee on the Constitution, A Question of Confidence? The Fixed-term Parliaments Act 2011, 12th Report of Session 2019–21, HL Paper 121.
20 Steven Chaplin, “We should have confidence in the way confidence is working in Parliament,” Hill Times, Nov 23, 2020.
21 Bosc and Gagnon, House of Commons Procedure and Practice, chapter 7.
22 Canada. Consensus Report on the Constitution (Charlottetown Accord), Final Text. (Ottawa: August 28, 1992).