No Confidence Vote
- Impeachment — Legislative oversight of the executive — Removal of officials — Prime Minister — Parliamentary systems
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. A no confidence vote is a vote taken by a parliament to express its lack of confidence in the executive government. An executive government that loses the confidence of the parliament no longer has authority to govern and is dismissed.
2. No confidence votes are the procedural expression of the defining feature of parliamentary systems of government, which is that the executive government is accountable to the parliament and holds that office only while it has the confidence of a majority of the elected representatives in the parliament.
3. No confidence votes in this sense do not feature in presidential systems, in which the head of the executive government is directly elected by the people and does not rely on the support of the parliament to hold office. The impeachment process in presidential systems differs from no confidence votes in parliamentary systems, in that the grounds for impeachment are confined to serious misbehaviour and abuse of office. In contrast, a no confidence vote may be brought because the majority in parliament no longer supports the executive government, and no specific reason is required.
4. No confidence votes generally also feature in semi-presidential systems, in which the executive comprises both a directly elected president and a prime minister and cabinet derived from and responsible to the legislature (semi-presidentialism). The substantive power of the elected president varies across semi-presidential systems. In some, such as in France, the president has a substantive role in the formation and dismissal of the government. In others, the role of the elected president is largely ceremonial. Generally in semi-presidential systems, the prime minister and government will need to hold the confidence of the parliament, but a no confidence vote will not directly affect the position of the president.
5. In both presidential and parliamentary systems, the parliament may pass a motion of censure on the president, prime minister, an individual minister, or other member of the executive government. A motion of censure is sometimes also termed a motion of no confidence, because it is a way in which the parliament can express its disapproval or lack of confidence in a member of the executive government. While this form of ‘no confidence’ or ‘censure’ vote is an important mechanism by which the parliament can hold an individual minister to account, it in itself does not result in the dismissal of the executive government. While that individual minister might be required to resign, the government still stands. This article focuses on no confidence votes directed to the government as a whole.
B. Function of No Confidence Votes
6. No confidence votes express a core value of parliamentary government: that the executive government depends upon the support of the majority of the parliament to continue in power. In this sense, the purpose of no confidence votes is to ensure that the executive is accountable to the people’s representatives in the parliament. However, in many parliamentary systems, the close relationship between the executive and parliament inhibits the parliament’s capacity to hold the executive to account. Party loyalty and partisanship blur the distinction between the executive and the parliament such that the primary task of the majority in parliament can appear to be to support the executive, rather than hold it to account (Gardbaum 631). That only five percent of no confidence motions in advanced parliamentary democracies from 1960 to 2011 have resulted in the departure of the government (Williams 1475) might support this assessment. However, other commentators suggest that the value of no confidence votes cannot be measured by their incidence or success. Brazier (at 212–213) states that
The real significance of the general requirement that a government retain the confidence of the House of Commons is not in the rare loss of a vote of confidence ... but rather that it obliges every government to defend itself, explain its policies, and justify its actions, to its own back-benchers, to the opposition parties, and through them to the country as a whole.
7. Political scientists have shown that no confidence votes are also used for other political purposes. For example, confidence votes, in which the government makes a vote on a particular policy or legislation a matter of confidence, is a way in which a prime minister can cement support from within his or her own party, effectively using the threat of dissolving parliament to garner support for a particular policy (Huber). In Germany, the Chancellor may strategically lose a vote of confidence in order to cause an early dissolution of parliament (dissolution of legislative body). For political parties in opposition, no confidence votes, even when they are destined to fail, serve to signal the government’s shortcomings to the public and to garner voters’ support for the opposition in the long term (Williams).
8. As such, the practice of no confidence votes is strongly tied to politics and is particularly influenced by political relationships within the executive and between the executive and the parliament. These relationships will differ between political systems and change over time. The political context also affects the design of constitutional provisions to regulate the use of no confidence votes, as can be seen in the historical evolution of no confidence votes.
C. Historical Evolution
9. No confidence votes originate in the Westminster parliamentary system as it was consolidated in the United Kingdom (UK) during the nineteenth century. As executive powers were transferred from the monarch to ministers who were also members of parliament, the parliament developed procedures by which it could hold ministers accountable. By the mid-nineteenth century, the convention had developed that ministers must hold the confidence of the elected House of Commons. If they did not, the prime minister tendered the government’s resignation or requested the monarch to dissolve parliament. No confidence votes in the UK are still largely governed by constitutional conventions. Other Westminster systems, such as Australia and Canada, also continue to rely on constitutional conventions.
10. The global diffusion of parliamentary systems and written constitutions has led to the codification of no confidence votes in written constitutions. Twentieth century European constitutions sought to translate the Westminster parliamentary system into written provisions, and adapt its rules to European political and constitutional circumstances (Bradley and Pinelli 653–656). One outcome of this process was the ‘rationalized parliament’, meaning one governed by written constitutional rules and procedures designed to promote government stability and efficiency. For example, the no confidence vote procedures included in the Basic Law of the Federal Republic of Germany 1949 were expressly designed to promote the stability of government, and protect against the frequent dissolutions of parliament that characterized the Weimar Constitution (1919) and which created the environment in which the Nazi party came to power (Case 2 BvE 4, 7/05 (Parliamentary Dissolution II Case) (2005) para. 135 (Ger)). In France, the procedure for no confidence votes set out in Art. 49(3) of the Constitution of the Fifth French Republic (Constitution of the French Republic: 28 September 1958 (Fr)) was designed to provide a way for the government to legislate in the absence of a parliamentary majority, and so avoid the potential inefficiencies of a parliamentary system (Boyron 82). In rationalized parliamentary systems, no confidence votes tend to be governed by detailed constitutional specifications concerning the form, timing, and effect of no confidence votes.
11. Colonization provided a different path for the diffusion of the parliamentary system. In parts of Africa, Asia, the Caribbean, and the Pacific, British colonial rulers established local parliaments along Westminster lines. Many former colonies adopted the Westminster model upon independence. In some such cases, no confidence votes were assumed to be part of the parliamentary system of government. For example, the Commonwealth of Australia Constitution Act: 9 July 1900 (Austl) makes no express mention of no confidence votes, but they are undoubtedly part of Australia’s constitutional system of responsible government. In other cases, independence constitutions made detailed provision for no confidence votes. This was more likely to be the case where a parliamentary system was transferred rapidly and its conventions were not deeply embedded, as was the case in the Pacific region (Hassall 215).
12. Even where the practice of no confidence votes is largely governed by convention, there may nevertheless be some degree of codification. Parliament’s Standing Orders might codify the procedures for a no confidence vote. Legislation may also regulate the use of no confidence votes or their outcomes, as occurred in the UK with the passage of the Fixed-term Parliaments Act 2011.
D. Analysed Constitutions
13. Given the different evolutionary paths in the development of no confidence votes, constitutions vary in the level of specificity with which they deal with no confidence votes. For the purposes of this comparative analysis, this article takes as examples constitutions from each of the parliamentary constitutional traditions outlined above. It takes the unwritten Constitution of the United Kingdom as the original and primary example of a parliamentary system in which no confidence votes are generally a matter of convention. Australia, Canada, and South Africa also fall into this category, although in those states the existence of a written constitution affects the use of no confidence votes in different ways. As examples of rationalized parliamentary systems, the article takes the Basic Law for the Federal Republic of Germany: 23 May 1949 (Ger) and the Constitution of the Fifth French Republic as its primary examples. The latter constitution also provides an example of no confidence votes in a semi-presidential system. The provisions of other European and some African constitutions are noted in passing to illustrate the variety of ways in which no confidence votes might be regulated. Finally, this article takes the Constitution of the Independent State of Papua New Guinea: 16 September 1975 (Papua NG) and the Constitution of the Republic of Vanuatu: 30 July 1980 (Vanuatu) as examples where the Westminster system has been transplanted and then adapted to different constitutional contexts.
E. Comparative Description
14. A comparative study of the form and regulation of no confidence votes highlights a range of similarities and differences. It shows that no confidence votes perform the same general function of either affirming or removing from the executive government the parliamentary support necessary for its authority to govern. However constitutional systems differ in the ways in which confidence is formally expressed, the parliamentary procedures for no confidence votes, and the consequences of a successful no confidence vote.
1. Form of No Confidence Votes
(a) Express No Confidence Votes
15. A vote of no confidence is generally moved by the opposition party or parties represented in the parliament (political parties or fractions in legislative body). It might expressly state that the parliament has no confidence in the government. It may also set out the reasons for the loss of confidence, but this may not be a necessary requirement.
16. In the UK and other convention-based parliamentary systems there is no standard form of words that must be used to express no confidence. This can give rise to some uncertainty. For example, in May 2005, opposition parties in Canada put a procedural motion in response to a committee report to the parliament. While the opposition considered this to be no confidence vote, the government claimed it was not and a second, more explicit, vote was required (Heard).
17. Some written constitutions, such as that of Papua New Guinea, require that a motion must be ‘expressed to be a motion of no confidence’ (Art. 145(1)(a)). Other constitutions may not provide a standard form of words, but the need to comply with special procedural requirements (discussed below) will generally make it obvious that a vote is a vote of no confidence.
(b) Confidence Votes
18. Confidence votes differ from no confidence votes in that they are brought by the government, rather than the opposition, and seek to affirm the parliament’s confidence in the executive government.
19. In some parliamentary systems governed by convention, it used to be the case that some kinds of votes—such as a vote on the budget or a major policy—were regarded as so central to the government that losing those votes implied a loss of confidence (Brazier 209). The increasing instance of coalition or minority governments means that a government loss on legislation is no longer regarded as indicating a loss of confidence. Some written constitutions make this explicit. For example, the Constitution of the Italian Republic: 22 December 1947, Art. 94(4) (It) provides that rejection by parliament of a government proposal will not force the government to resign.
20. In convention-based parliamentary systems such as the UK, an exception arises where the government itself states that a vote on the bill is an issue of confidence. Such votes of confidence tend to be used where the prime minister wants to marshal support from his or her own party members, who might disagree with the particular legislation but do not want to see the government fall.
21. Some constitutions make express provision for confidence votes. Prior to amendment in 2008, Art. 49(3) of the French Constitution permitted the government to make the passage of a bill an issue of confidence, with the result that the bill was regarded as passed unless a motion of no confidence was put within 24 hours and carried. A similar provision has been adopted in the constitutions of several African states (see eg the Constitution of the Republic of Mali (Decree No 92-073): 25 February 1992, Art. 78 (Mali); Constitution of the Islamic Republic of Mauritania: 12 July 1991, Art. 75 (Mauritania); Constitution of the Republic of Niger: 18 July 1999, Art. 88 (Niger)). In France, the provision was intended to provide the government with a mechanism to pass legislation when the government did not hold the majority of the parliament. Controversially, however, the procedure was frequently used, including in the context of parliamentary majorities, as a way to stifle opposition and coerce support for legislation (Boyron 81). In 2008, the Constitution was amended to curtail the use of Art. 49(3) by limiting it to finance or social security financing bills, and one other bill per parliamentary session.
22. The German Constitution takes a different approach. There, the Chancellor may seek a vote of confidence, which if not supported by a majority of the members of parliament triggers a right in the President to dissolve the parliament. This provision has been used to affirm the parliament’s support for the Chancellor’s policies, but also, controversially, the Chancellor has deliberately lost confidence votes in order to dissolve the parliament and trigger early elections. These so called ‘unreal’ or ‘false’ confidence votes were the subject of judicial review and are discussed below.
(c) Constructive No Confidence Votes
23. A constructive no confidence vote expresses the parliament’s lack of confidence in the current leader of the executive while also expressing support for a different leader. It therefore minimizes the instability that may arise when a vote of no confidence removes a government in circumstances in which there is no clear alternative government. It also limits the executive’s discretion to dissolve parliament. Some written constitutions permit only constructive no confidence votes. Article 67 of the German Constitution provides that the parliament can express its lack of confidence in the Chancellor only by electing a successor. Similar requirements are found in the Constitutions of the Kingdom of Spain: 6 December 1978, Art 113(2) (Spain) and Papua New Guinea, Art. 145(2)(a).
2. Procedural Requirements for No Confidence Votes
24. Constitutions may impose various procedural requirements on no confidence votes. These requirements may facilitate no confidence votes by providing a clear process for the parliament to follow and limit the capacity for a government to effectively avoid a no confidence vote. Procedural requirements may also seek to restrict the use of no confidence votes in order to minimize disruption to government and promote stability.
(a) Number of Members of Parliament Required to Support a Motion for a No Confidence Vote
25. Some written constitutions require that a certain proportion of the parliament support a motion for a no confidence vote. This ranges from one-tenth (eg Constitutions of France, Art. 49 and Italy, Art. 94), to one-fifth (eg Constitution of the Republic of Croatia: 2 December 1990, Art 115(1) (Croat) and Constitution of the United Republic of Tanzania: 26 April 1977, Art. 53A(3)(a) (Tanz)), to one-third (eg Constitution of the Republic of Rwanda: 26 May 2003, Art. 130 (Rwanda)). This requirement recognizes that no confidence votes disrupt the ordinary business of government and attempt to ensure that no confidence votes are brought only where there is wide support.
(b) Scheduling a No Confidence Vote
26. In the UK there is an established convention that the government will allot a day in reasonably short time to debate a no confidence vote. This recognizes the opposition’s position as a potential alternative government, as well as the need for the government to settle any challenge to its authority in a timely way (May 329–330). This convention has been codified in the Australian Parliament’s Standing Order 48, which provides that an express motion of no confidence takes precedence over all other parliamentary business. In South Africa, the Constitutional Court has held that a no confidence vote must be given priority over other parliamentary business and voted upon within a reasonable time (Mazibuko v Sisulu and Another (2013) (S Afr), discussed below).
27. Written constitutions may prescribe a minimum and/or maximum period of time between bringing a motion of no confidence and parliamentary debate on the motion. This is generally a period of between two and seven days. The purpose of delaying debate is to avoid a sudden change of government and to give members of parliament time to prepare for debate. A requirement that debate must occur within a certain period of time limits the opportunity for the government to unreasonably delay or avoid a no confidence vote.
(c) Majority Required for a No Confidence Vote
28. Some written constitutions specify that a no confidence vote requires the support of an absolute majority of the members of parliament (eg Constitution of France, Art. 49; Constitution of Germany, Arts 67–68). A much smaller number require a qualified majority: for example, the Constitution of the People’s Democratic Republic of Algeria: 28 November 1996, Art. 136 (Alg) requires two thirds. In convention-based parliamentary systems, such as the UK, a no confidence vote requires a simple majority to pass. The requirement for an absolute or qualified majority makes passing a motion of no confidence more difficult, because abstentions effectively count as a vote against the motion.
(d) No Confidence Votes in Bicameral Systems
29. Where there are two chambers of parliament (bicameralism), governments generally require only the confidence of the representative or lower house of parliament. There are some exceptions. The Italian Constitution requires that the government must enjoy the confidence of both chambers of parliament and provides that either chamber may vote to withdraw confidence (Art. 94(1)–(2)). The Constitutions of Romania: 21 November 1991, Art. 113 (Rom) and the Republic of Kazakhstan: 30 August 1995, Art. 53 (Kaz) require a joint sitting of both houses on a no confidence vote.
(e) Prohibition of No Confidence Votes
30. In order to reduce the potential for political instability that may arise from repeated no confidence votes, some constitutions place restrictions on when a no confidence vote may be held.
31. Some constitutions prohibit members of parliament from bringing a second no confidence vote after the defeat of an initial no confidence vote in the same parliamentary session. For example, the Spanish Constitution, Art. 113(4) provides that the signatories to an unsuccessful no confidence vote may not introduce another such vote in the same session. The French Constitution, Art. 49 provides that a member of parliament may not sign more than three resolutions of no confidence in the same parliamentary sitting.
32. Some constitutions provide newly elected governments with ‘grace periods’ during which the parliament may not bring a no confidence vote. The Constitution of Papua New Guinea, Art. 145(4) provided that no confidence vote may not be brought for 30 months after the appointment of the Prime Minister following elections, nor in the twelve months prior to the election date (these provisions were challenged in Namah v O’Neill (2015) (Papua NG), discussed below). Similar amendments were proposed for the Vanuatu Constitution in 2004 but were not properly adopted (Vohor v Attorney-General (2004) (Vanuatu)). The purpose of such grace periods is to give a newly elected government time to settle in and develop its policies and legislative program. However, extended grace periods raise concerns because they restrict parliament’s ability to hold the executive to account and can entrench the executive government in power.
3. Consequences of No Confidence Votes
33. The consequences of a successful no confidence vote may be specified in the constitution or left to convention. The consequences also depend on the form of the no confidence vote.
34. Where there is a constructive no confidence vote, in which parliament has expressed no confidence in the current leader and nominated a successor, that person will become the new leader of the government. Where the parliament expresses no confidence in the current government, that government may resign so that a new government can be formed, or the parliament may be dissolved and new elections called. Some constitutions regulate this procedure and specify that the parliament must elect a new leader within a certain period after a no confidence vote, and if it cannot, the parliament is to be dissolved by the head of state and new elections called (eg Constitution of the Republic of Serbia: 30 September 2006, Art. 131 (Serb)). Constitutions vary as to the scope of discretion given to the head of state to dissolve the parliament following a vote of no confidence. In the case of Serbia, the President has an obligation to dissolve the parliament. In contrast, in Germany, in the event that the parliament does not support a motion for confidence put by the Chancellor, the President ‘may’ grant the Chancellor’s proposal to dissolve parliament and has discretion to refuse to dissolve the parliament (Art. 68).
35. In convention-based parliamentary systems, the established convention is that a government which loses a no confidence vote must either resign or request the head of state to dissolve parliament and order new elections. By convention, the head of state will act on the advice of the prime minister. The government’s ability to request dissolution might be restrained by legislation. For example, the Fixed-term Parliaments Act 2011 (UK) departs from the conventional position by specifying that the government may request the monarch to dissolve parliament following a no confidence vote only if within 14 days a new government has not obtained the confidence of the parliament.
F. Judicial Review
36. One significant effect of the codification of no confidence votes in written constitutions is to open the regulation and use of no confidence votes to judicial interpretation and review. This is a point of departure from constitutional systems such as the UK, where no confidence votes are a product of constitutional convention and so not legally enforceable. Even when no confidence votes are expressly provided for in the text of the constitution, some courts may be reluctant to review the conduct or outcome of a no confidence vote on the basis that this is a political matter properly left to parliament, the executive, and ultimately the people to resolve. Some courts, however, have determined disputes arising out of no confidence votes and ruled upon the constitutionality of laws governing the conduct of no confidence votes. This section examines the way in which the courts in four countries have adjudicated matters relating to no confidence votes.
1. Judicial Review of No Confidence Votes: Germany and Vanuatu
37. A court might be asked to review the conduct of a no confidence vote to determine whether the procedures, or the vote itself, were consistent with the constitution.
38. In Germany, the Constitutional Court has twice considered whether a confidence vote aimed at dissolution of the parliament was constitutional. Art. 68 of the German Constitution permits the Chancellor to put a motion for a vote of confidence. In the event that the vote of confidence is not supported by the parliament, the Chancellor can propose that the President dissolve the parliament, a power that the President and parliament does not otherwise have. In 1982 and again in 2005, the Chancellor deliberately lost confidence votes in order to trigger early elections. These votes were challenged before the Constitutional Court (Parliamentary Dissolution I Case (1983) (Ger); Parliamentary Dissolution II Case (2005) (Ger)). In both cases, the Court held that the votes were constitutional and that the Chancellor was justified in his belief that the government was confronted with instability, even though the government still had the support of a majority of the representatives in the parliament. While upholding the procedure, the Court did however impose some constraints on the use of confidence votes for the purpose of dissolution, requiring that such votes must ‘serve to restore a Federal Government sufficiently anchored in Parliament’ in order to meet the purposes of Art. 68 (Parliamentary Dissolution II Case (2005) paras 126–127 (Ger)). The Court recognized its limited capacity to investigate whether there is in fact confidence in the government (para. 148). It also held that in this area, the Court’s power of review is restricted because three other constitutional actors—the Chancellor, the parliament, and the President—each also make their own assessment of the situation when exercising their powers under Art. 68. The Court’s role is to ensure that the decisions of these actors are plausible and supported by the facts (paras 154–155).
39. In Vanuatu, fluid political allegiances among members of parliament make no confidence votes a common occurrence. The Court is frequently approached to review the actions of the Prime Minister, Speaker of Parliament (‘Speaker’), and other constitutional actors in relation to no confidence votes. As a result, the Court has generated a body of rules that guide the processes for no confidence votes. Where the Speaker receives a valid notice of a no confidence vote while the parliament is in session, the session must continue so that the vote can be considered and determined (Republic v Carcasses (2009) (Vanuatu); Natapei v Speaker of Parliament (2015) (Vanuatu)). The Speaker cannot adjourn parliament without allowing debate on a no confidence vote (Natapei v Tari No 2 (2001) (Vanuatu)). Nor may the Speaker close a session of parliament without allowing parliament to elect a new prime minister following a successful no confidence vote (Natapei v Wells (2013) (Vanuatu)). The Court has also determined what constitutes an absolute majority for the purposes of passing a no confidence vote (Kilman v Speaker of Parliament (2011) (Vanuatu)).
40. The cases from Germany and Vanuatu illustrate that where the written rules are spare, or where there are no deep conventions surrounding the use of no confidence votes, a court might step in to provide additional principles or conditions to govern the exercise of no confidence votes. The two examples differ, however, in the extent to which the court intervenes in the political process. This history of constitutional litigation in Vanuatu has made the Court a significant player whenever a no confidence vote occurs. The Court has reiterated that its role is not to interfere with parliamentary processes, but rather to uphold the constitutional right of members of parliament to bring a no confidence vote. In cases where the Court has found the actions of the Speaker unconstitutional, it has made orders to compel the Speaker to summon parliament and place the motion of no confidence before it. In contrast, because the proceedings before the German Constitutional Court concern a dispute as to the rights and duties of a supreme federal body (pursuant to Art. 93(1) of the German Basic Law), that Court may only provide an interpretation of the Constitution and cannot directly intervene in the parliamentary process.
2. Judicial Review of Parliamentary Rules: South Africa
41. In the South African case of Mazibuko v Sisulu and Another (2013) (S Afr), a member of the opposition party challenged the way in which parliament dealt with her motion for a no confidence vote. The Court was asked to determine if the parliamentary rules for dealing with a no confidence vote were constitutional. The South African Constitution does not specify who may bring a motion of no confidence, nor the time in which the parliament must debate and vote on the motion. A majority of the Court held that while parliament has the constitutional authority to prescribe a procedure for bringing a no confidence vote, those rules must not deny, frustrate, or unreasonably delay each member of parliament’s constitutional right to bring a motion for a no confidence vote (para. 60). The Court also held that a motion of no confidence must be given priority over other parliamentary business and voted upon within a reasonable time (para. 66). The Court was particularly concerned to emphasize that its determination was not an infringement of the separation of powers, but was rather directed to remedy a constitutional defect in the Parliament’s rules (para. 72).
3. Judicial Review of Constitutional Amendments: Papua New Guinea
42. The Constitution of Papua New Guinea originally provided that a no confidence vote may not be brought during the first six months of the appointment of the Prime Minister following elections. This grace period was extended by constitutional amendment to 18 months in 1991 and 30 months in 2012. The 2012 amendments also increased the period of notice and the number of members of parliament required to support a motion of no confidence. In Namah v O’Neill (4 September 2015) (Papua NG), the Supreme Court held that these amendments were unconstitutional because they were made for a purpose inconsistent with that of the original six month grace period and because they served to entrench the power of the government at the expense of the parliament. The Court held that the amendments undermined the system of parliamentary democracy established by the Constitution and were ‘inconsistent with the spirit and purpose of the Constitution’ (para. 99).
43. There is a close link between the regulation and practice of no confidence votes and the specific parliamentary culture of the country concerned. The political context informs how the rules governing no confidence votes are formulated and, to an even greater degree, how those formal rules operate in practice. Different constitutional systems have generated different understandings of no confidence votes arising from the circumstances of each country’s constitutional history, the nature of party politics, and the operation of the institutions of government.
44. Constitutions vary in the extent to which they regulate no confidence votes. Some constitutions include requirements designed to restrict the use of no confidence votes, including special parliamentary procedures, absolute or higher majorities, and grace periods. Others are less prescriptive, leaving the conduct and effect of no confidence votes to convention or parliamentary practice. The comparative description in this article suggests that a higher level of regulation of no confidence votes is driven on one hand by a concern for the stability and efficiency of the executive government, and on the other by the requirement that the executive government be accountable to the parliament. Different constitutional systems have balanced these two core interests in different ways. The procedural requirements for no confidence votes may serve to restrict or limit their use to avoid disruptions to government; but may also facilitate the use of confidence votes to hold the government to account.
45. However, constitutional provisions to regulate the use of no confidence votes can only go so far in fostering stability and political accountability. The nature of the electoral and party systems in a particular country, and the political relationships within the executive and between the executive and the parliament, are also critical. Theoretically, there is greater potential for a no confidence vote where the prime minister’s political party does not command a majority in parliament and must rely on the support of other parties or members of parliament. For this reason, it might be thought that no confidence votes are more likely in party systems in which there are numerous small parties, rather than in two party systems. This, however, is not reflected in practice: in some parliamentary systems coalition governments operate in conditions of great stability; while minority government and no confidence votes feature heavily in some two party systems. No confidence votes appear to be more common where parliamentarians are not united under strong political parties. In Vanuatu, for example, the fragmentation of political parties has meant that the division of members of parliament into government and opposition groupings is much more fluid, thus making shifting parliamentary majorities and no confidence votes more likely. The use of no confidence votes by political actors inevitably has political dimensions and will be affected by the constitutional culture and the political circumstances that pertain in a particular country at a particular time. Constitutional provisions regulating no confidence votes might thus appear similar but operate very differently in different political and constitutional contexts.
46. The codification of no confidence votes in constitutional texts facilitates judicial review of no confidence votes. Judicial review can act as an important check on the powers of the executive government and the parliament, but the involvement of courts in political processes carries some risk. In each of the four examples discussed in this article, the courts were concerned to protect the no confidence vote as an essential component of the parliamentary system of government, but differed in the extent to which they were willing and able to intervene in the conduct of parliament and political processes. Where a court does intervene, judicial review takes different procedural forms and speaks to the constitutional and political context, giving different weight and expression to the values of stability and accountability in light of the text of the constitution and constitutional practice.
- Baranger, D, and Murray, C, ‘Systems of Government’ in Tushnet, M, Fleiner, T, and Saunders, C, (eds), Routledge Handbook of Constitutional Law (Routledge 2013).
- Boyron, S, The Constitution of France: A Contextual Analysis (Hart Publishing 2013).
- Bradley, AW, and Pinelli, C, ‘Parliamentarism’ in Rosenfeld, M, and Sajo, A, The Oxford Handbook of Comparative Constitutional Law (OUP 2012).
- Brazier, R, Constitutional Practice (2nd edn OUP 1994).
- Gardbaum, S, ‘Separation of Powers and the Growth of Judicial Review in Established Democracies (Or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn from Sale?)’ (2014) 62 AmJCompL 613.
- Kelly, R, Confidence Motions (House of Commons Library 2013).
- Hassall, GH, ‘Pacific Island Parliaments: Developmental Aspirations and Political Realities’ (2012) 27 Australasian Parliamentary Review 213.
- Heard, A, ‘Just What is a Vote of Confidence? The Curious Case of May 10, 2005’ (2007) 40 Canadian Journal of Political Science 395.
- Huber, JD, ‘The Vote of Confidence in Parliamentary Democracies’ (1996) 90 AmPolSciRev 269.
- May, TE, Erskine May's Treatise on the Law, Privileges, Proceedings, and Usage of Parliament (23rd edn LexisNexis 2004).
- Williams, LK, ‘Unsuccessful Success? Failed No Confidence Votes, Competence Signals and Electoral Support’ (2011) 44 Comparative Political Studies 1474.
- Case 2 BvE 1, 2, 3, 4/83 (16 February 1983) 62 BVerfGE 1 (Ger).
- Case 2 BvE 4, 7/05 (25 August 2005) 114 BVerfGE 121 (Ger).
- Kilman v Speaker of Parliament  VUCA 15 (Vanuatu).
- Mazibuko v Sisulu and Another (CCT 115/12)  ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013) (S Afr).
- Namah v O’Neill (4 September 2015) Papua New Guinea Supreme Court (Papua NG).
- Natapei v Speaker of Parliament  VUSC 92 (Vanuatu).
- Natapei v Tari No 2  VUSC 38 (Vanuatu).
- Natapei v Wells  VUSC 43 (Vanuatu).
- Republic v Carcasses  VUCA 34 (Vanuatu).
- Vohor v Attorney-General  VUCA 22 (Vanuatu).