In terms of government formation, there are two kinds of parliamentary system: “…countries where the government needs to win an investiture vote are said to have positive parliamentarism, while countries in which the government just needs to be tolerated by parliament are said to have negative parliamentarism”. By this definition, the UK has a negative parliamentary system (excepting s. 2(5), Fixed-Term Parliaments Act 2011): the Queen appoints the Prime Minister by inviting him to form a Government; and subsequent ministers are appointed by the Queen on the advice of the PM; but the House of Commons may move that it has no confidence in HM Government. Compared to a positive parliamentary system – e.g. Spain, where the appointment of the King’s prime ministerial nominee requires a successful vote of confidence by an absolute majority of the Congress of Deputies – a negative one has three disadvantages. These are that there is a democratic deficit in the Government; obscurity in a Government’s democratic mandate, under hung parliaments; and that there are inadequate checks and balances between the Government and Parliament.
In principle, only a majority of the political party from which the Government is formed – which normally holds the majority of seats in the Commons – currently needs to vote in favour of the candidate who is invited to become PM. Across the two main political parties, the extent to which party members, who are not additionally MPs, play a role in the leadership election also differs. For example, in the Conservative Party leadership election, Boris Johnson was nominated (as one of two candidates) by 160 Conservative MPs, in the final ballot of the Party’s MPs, before being elected by the party membership. By contrast (where there is a vacancy), a Labour leadership candidate must be nominated by 10% of the Parliamentary Labour Party and either 5% of Constituency Labour Parties or at least three affiliate organisations (two of which must be trade unions) which represent a minimum of 5% of the affiliated membership. Following which, the leader will be elected by a majority of the party membership. At the 2019 general election, the Conservative Party won 365 seats and, therefore, the Johnson Government was only with formed the affirmative consent of at most a quarter of the Commons.
The reason why a Government may be tolerated but not chosen by a majority of MPs is that, although MPs may support different candidates during party leadership elections (unless the leader runs unopposed), the minority usually acquiesces to the majority’s choice. Rather than support the Opposition in a motion of no confidence, they will support the Government because it is usually, from their perspective, the lesser of two evils.
Conversely, Commons confirmation of a Prime Minister-designate will mean that at least a simple majority of MPs consent to the appointment. In terms of party loyalty, it is clearly less rebellious to fail to approve an investiture vote than to actively support the Opposition in a motion of no confidence. Although under a majority Government it may not be the case that the prime ministerial nominee will literally be rejected by the Commons, the mere possibility of rejection will mean that prospective Government backbenchers will be able to influence the party leadership election by the threat of embarrassing the Government with a backbench rebellion, on a prime ministerial confirmation vote. Accordingly, potential PMs/party leaders will have to satisfy backbench as well as frontbench MPs and, consequently, a greater proportion of the electorate.
The same is true for other ministerial appointments, notwithstanding that failure for Parliament to approve any after a 14-day period will not prompt an early dissolution of Parliament (as I will discuss below). Most ministers, like Chancellor of the Exchequer, are appointed from the Commons. Therefore, parliamentary confirmation will mean that most ministerial nominations (including the most important) will be confirmed by the Commons – thereby making the Government more democratic.
During a hung parliament (in a negative parliamentary system), the obscurity of a Government’s democratic mandate is even more pronounced. Under the status quo, the Commons effectively elects the Government by determining who cannot form it – not much use when no party was won a majority. Coalition or minority Government formation would have a clearer democratic mandate if it depended on approval by a majority of the Commons (to the extent that most ministers are appointed from the lower house).
If the prime ministerial investiture vote succeeds, it will establish a majority in favour of their coalition or minority Government, which is particularly valuable where the party which won a plurality of seats, in the Commons, is not a coalition partner. NB, inasmuch as the Commons might (under the status quo) provisionally tolerate a PM leading a minority administration, in the absence of any better-placed alternative, a simple majority of the Commons may be acquired in favour of a minority administration through the abstention of parties who, while objecting to an alternative party forming a Government, do not want to be seen to be obstructing it in the absence of said better-placed alternative. If the prime ministerial investiture vote fails, it will trigger a 14-day period in which a different PM must be proposed and approved or, failing which, trigger an early dissolution of Parliament.
Checks and Balances
The other shortcoming of a negative parliamentary system is that there are inadequate checks and balances between Parliament and the Government. Due to the principle of collective ministerial responsibility, ministers end up on the ‘payroll vote’ whereby they are compelled to vote with the Government or else resign from it.
Although the Ministerial and Other Salaries Act 1975 provides some safeguard against the Government excessively enlarging the payroll vote, it is insufficient because it is merely a quantitative restriction. A qualitative restriction is needed in order to screen the character of ministerial nominees. Alexander Hamilton, in Federalist Number 76, argues that Senate confirmation of presidential nominations to the US Cabinet provides a check against the latter appointing secretaries due to his favouritism or their sycophancy. From my point of view, if this is valuable to a presidential system – defined by its strict separation of powers – how much more valuable is it in a parliamentary system, which is defined by the Government requiring the confidence of Parliament.
In order to achieve this under the British system, the consent of each House must be obtained when one of its members is nominated as a minister. It will be the most appropriate judge of the suitability of the nomination because it will be the political institution most adversely affected by the appointment of a Government toady, from within its own ranks. As I have stated above, this is still true for Government backbenchers, since the threat of a backbench rebellion on a confirmation vote gives them the opportunity to influence ministerial appointments in their favour.
Parliamentary confirmation of ministerial nominations will rebalance the division of power between Parliament and the Government, in addition to the motion of confidence, because it has a greater and more proportionate range of application. As I have said above, it will increase the threshold of active support which the Government must enjoy in Parliament. Additionally, the incentive for Government backbench MPs approving subordinate ministerial nominees will be minimised, because it will not be a vote of no confidence per se. Therefore, rejecting said nominees will not prompt an early general election in which said MPs will have fight to a re-election campaign having just voted against their own party.
Moreover, the reform will give the House of Lords a role in ministerial formation which they currently lack, despite the fact that peers may be appointed as ministers. Although the lack of party control over the Lords might create an unpredictable environment for ministerial nominations from it, I think that this is a small and acceptable cost compared to the benefit which the reform will bring. Only a few minor appointments, if any, are typically made from the Lords, so it will not be able to use this power to obstruct the Government as a whole. Furthermore, I think that the greater independence which peers have compared to MPs, by virtue of their life tenure, will make it more likely for scrutiny in ministerial confirmation votes to be on the nomination’s merits, as opposed to partisan concerns.
To those who would object to this confirmatory role of the Lords, based on its unelected nature, I would respond that it is legitimate to the extent that the present nomination of peers to the ministry is. If the legitimacy of the latter is in question, the proper solution would be to place a statutory limitation of the number and type of minister who may be appointed from the Lords, which is outside the province of this post. My view is that this role is desirable, in light of the above arguments and the fact that the PM does not have to recommend the appointment of any ministers from the Lords, if he does not want to.
Proposal for Reform
In order to address the above issues, legislation should be enacted so that:
- the Queen shall nominate the PM, by inviting him to form a Government, and appoint him pending confirmation by the Commons;
- failure to confirm a prime ministerial nomination shall trigger a 14-day period during which a different candidate for PM shall be proposed and confirmed by the Commons, failing which there shall be an early dissolution of Parliament (cf. s. 2(3), FTPA); and
- the Queen, on the advice of the PM, shall nominate and appoint other ministers, pending confirmation by the House of Parliament of which they are a member.
For both kinds of ministerial appointment, the threshold for approval should, for two reasons, be a simple majority. The first is to facilitate the fastest ministerial investiture as is consistent with the above objectives of the reform. The second is to avoid an inconsistent relationship between the Government and Parliament. The threshold for a motion of no confidence is also a simple majority, so if a higher threshold were used, e.g. an absolute majority, confirmation debates/votes would presumably be distorted because MPs would have to account for the fact that their nominees would be held to different standards for their appointment versus removal.
Moreover, the adoption of this proposal could benefit from being introduced in connection with the Draft Fixed-Term Parliaments Act 2011 (Repeal) Bill. The two subjects are linked insofar as the calling of a new Parliament will necessitate the investiture of a new Government, and it is reasonable to conclude that the former reform would have greater salience if implemented in conjunction with the latter.
Challenges for Reform
In its Report on the Constitutional Implications of Coalition Government, the House of Lords Select Committee on the Constitution advised against a prime ministerial investiture vote. Notwithstanding the significant differences between the investiture procedure considered in the report and the one which I have outlined above, there are some overlapping principled challenges to reform which must be addressed. The Committee concluded that “…it would be a significant step towards a presidential style of government. Prime Ministers are constitutionally primus inter pares and are in post as part of a collective government rather than in their own right. Parliament’s confidence in the Prime Minister cannot constitutionally be distinguished from its confidence in the Government he or she leads”. I disagree with this concern because all the above proposal does is subject the pre-existing stages of ministerial appointment (including of the PM) to parliamentary confirmation and create a framework within which a new ministry can be proposed or Parliament be dissolved early, should the original one be rejected. The PM remains primus inter pares, since he will literally be the first among other ministerial nominees facing parliamentary confirmation and his powers will not be increased. The reform also does not detract from the power of the Commons to move that it has no confidence in the Government, the bedrock of collective responsibility.
Moreover, the Report cautioned against the “…situation where an incumbent Prime Minister’s party lost an election; a new Prime Minister took office; that new Prime Minister lost an investiture vote; so a third Prime Minister would take office within the space of around 10 days”. I would first clarify that a new PM would not take office until he won the approval of the Commons. Otherwise, this concern seems insignificant to me because the only difference between this hypothetical scenario (which would not occur under the above proposal) and the status quo is that one additional PM may be designated in a ten-day timespan. In my opinion, this risk is outweighed by the reward of having a PM who is affirmatively supported by a majority of MPs. Moreover, as I have set out above, it is more likely that the requirement for Commons approval will serve to prevent a candidate taking office who would not be approved by a majority of MPs. Therefore, there is unlikely to be a departure from the status quo of the PM of a Government which lost a general election being replaced by one who leads the party who won said election.
The underlying defect of the UK’s negative parliamentary system is that it is a dull instrument for ensuring that the Government is responsive to Parliament. The all-or-nothing nature of a motion of no confidence means that it tends not to be invoked where one party has a majority in Parliament. As a result, the Government can get away with appointing ministers who are not meritorious and who do not respect the balance of power between it and the legislature. The status quo also takes for granted single-party Government – something increasingly less common – and in the absence of which the system struggles to designate a ministry with a credible democratic mandate. Alternatively, the above proposed version of a positive parliamentary system additionally offers more opportunities for both Houses of Parliament, and especially Government backbenchers, to be involved in the formation of the Government, thereby improving the overall parliamentary system.
Max Taylor is a Bar Practice Course student at the University of Law, London Bloomsbury
The author would like to give warm thanks to Professor Michael Gordon and Professor Alison Young for their helpful comments on an earlier draft of this piece. Any remaining errors are the author’s own.
(Suggested citation: M. Taylor, ‘Parliamentary Confirmation of Ministerial Nominations’, U.K. Const. L. Blog (11th March 2021) (available at https://ukconstitutionallaw.org/))