If it is clear within 14 days of a vote of no confidence that an alternative government led by X commanding the confidence of the House of Commons can be formed, the Queen must appoint X, whatever Johnson does, George Peretz QC argues.

First published in August 2019.

George Peretz QC advises and represents major private clients, regulators and Government departments over the whole field of competition law, including cartels, mergers, Article 102, private actions for damages and injunctions and judicial review.
• He wrote and shared the following story on Twitter a few weeks ago.

This is an important point, which the debate on what Boris Johnson would have to do after a vote of no confidence under the Fixed Term Parliament Act hasn’t picked up.

The key point to hold onto is that the effect of s.2(3) and (4) of the Fixed-term Parliaments Act 2011 is that the only confidence motion that starts the ball rolling for a General Election is one worded in accordance with s.2(4): “That this House has no confidence in HM Government”.

But, critically, there is no prohibition on no confidence motions worded differently: they just don’t trigger a General Election.

That gives rise to an interesting conundrum: what would happen if the Commons passed a motion that (for example) just said “This House has no confidence in the Government’s policy in relation to leaving the EU without a Withdrawal Agreement”?

Boris Johnson couldn’t call an election: and it isn’t clear whether he would have to resign if it wasn’t clear that any other government could get the confidence of the House.

But leave that conundrum to one side: what if the House passed a no confidence motion in the Johnson Government that simultaneously declared that it wanted the Queen to send for X to form a government?

It seems to me that the position is then clear. Johnson can’t call an election: the FTPA precludes it – the 14 day period hasn’t even started.

But he has to resign: he has lost a confidence vote and the House has made it clear that a replacement, X, is available who would command its confidence. The Queen’s government will be carried on.

(Of course, X could take power on the basis that, an extension having been sought and obtained, MPs supporting him – along with, presumably, those Tory MPs still backing Johnson – will then vote for a General Election under s.2(1) FTPA.)

The advantage of that course is that it avoids all debate about what scope Johnson has to refuse to resign within 14 days of a s.2(4) FTPA vote of no confidence.

Or whether – like a dying scorpion trying to kill with its sting – he can try to set Election Day after Halloween and refuse to apply for an extension in the interim, in defiance of the purdah convention.

He is out of office, the new PM can get the extension, and an election is then held in which those opposed to and in favour of no-deal can take their cases to the people. Or, at least, the people as muffled and distorted by our first past the post voting system.

See this thread for further wisdom on the possibility of non-FTPA votes of confidence. I agree with the select committee: if a government loses any vote of confidence it has lost its authority to govern and must resign if a replacement is available.🔷

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[This piece was first published as a Twitter thread and turned into the above article on 12 August 2019 with the purpose of reaching a larger audience. It has been minorly edited and corrected. | The author of the tweets writes in a personal capacity.]

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(Cover: Flickr/UK Parliament / Jessica Taylor. / Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)