Vote of Confidence Clause
10.4.1 Overview of the Vote of Confidence Clause
The main idea of confidence motions in general is that the cabinet in a parliamentary democracy depends on support of the legislature for its legitimacy.[688] If the legislative support wanes, the Cabinet may face a no-confidence motion (which is covered in Sect.
10.5). As a counterweight to the vote of no-confidence, many countries with parliamentary systems also practice a vote of confidence. Surprisingly, even though ample constitutions include a no-confidence vote, significantly fewer countries foresee a vote of confidence. Both these motions that deal with the issue of confidence or no confidence secure the accountability of Government to parliament.[689]Additionally, there is a clear distinction between a vote of confidence in the formation progress of a new Government and during the term of office. For example, Greece’s constitution (article 84) states that the Government shall be obliged to request a vote of confidence by Parliament within fifteen days of the date the Prime Minister shall have been sworn in. Once members of Government are appointed by the Head of state, the confidence of the house is generally presumed to exist.[690] Only the vote after having entered into office is an instrument to influence parliamentary behaviour and is subject to this chapter.
10.4.1.1 Definition
The vote of confidence is a vote in which members of a group of Parliament or Parliament as a whole are forced to express whether they still support the person or group in power, usually the government.[691]
It is initiated by the office bearer by demanding that Parliament participate in a vote of confidence in the government. The vote of confidence can be attached on a specific policy or a program to an up or down vote on government.[692] As a result of a negative vote, members of Parliament face changes or even loss of office.
Therefore it aims to discipline Parliament and members will think carefully before voting as they could lose their mandate. A negative result of the vote in general leads to the resignation of the Government and can additionally result in the dissolution of Parliament and new elections.10.4.1.2 Purpose and Function of the Rule
Confidence vote procedures generally only exist in parliamentary systems. Presidential systems and semi-presidential systems predominantly do not foresee a vote of confidence. The reason for that is that in parliamentary systems cabinet depends on legislative support of its legitimacy.[693] In other words, the executive remains in office only as long as it enjoys the support of a majority of the parliamentarians. Between the Government and the Parliament exists a ‘confidence relationship’? The ‘confidence relationship’ between governments and parliaments is a two-way street.[694]
As outlined in Sect. 10.5, members of Parliament can attempt to control policy outcome by submitting, or threatening to submit, votes of no-confidence. As a counter-motion the vote of confidence is proposed by the Government with the aim of ensuring that it has the support of the majority for its complete programme, or for a single bill or policy.[695] Rather than challenging the opposition, the vote of confidence aims to prevent dissident members of a parliamentary majority from voting against the government.[696] It can also often be a strategic approach to push a shaky policy through Parliament or secure a strategic move advantage to pre-empt a no-confidence motion.
10.4.1.3 Norm Addressee
Since motions of confidence are proposed by the Government, the norm addresses the Head of the Government: the Prime Minister, the Chancellor, the President, or the Council of ministers.
10.4.1.4 Legal Nature/Character
Three different sources of authority serve as the basis for the vote of confidence: constitutions, standing orders, and conventions.[697] A vote of confidence clause in a country’s constitution is the most common source of authority to initiate a vote.
In some countries the applicable rules not solely derive from a convention, the constitution or standing orders but result from a combination of both, conventions and standing orders. Some countries such as Lithuania or Latvia have not provided for a vote of confidence at all.[698]Table 10.5 demonstrates that many countries practice a vote of confidence, even though the mechanism is not expressly mentioned in the constitution. As a vote of confidence clause in a country’s constitution ensures the highest amount of legal certainty, it is highly recommended to embed a respective clause in the constitution.
10.4.1.5 Historical Context
The vote of confidence is an instrument that has been used in different countries several times. An example from Great Britain illustrates how Government initiated votes of confidence operate. Two other examples from Germany show how the vote
Table 10.5 | | Source of authority for vote of confidence
| Source of authority | Countries |
| Constitution | France (art. 49), Germany (art. 68), Italy (art. 92), Portugal (196 and 203-204), Spain (art. 112), Algeria (art. 98), Belarus (art. 106), Bulgaria (art. 112), Croatia (art. 113), Finland (Sec. 44), Guyana (art. 106 (6)), Hungary (art. 21 (3)), Kazakhstan (art. 61), Kosovo (art. 100), Timor-Leste (art. 110) |
| Convention | Australia, Canada, Denmark, Ireland, Luxembourg, Netherlands, New Zealand, Norway, Sweden, United Kingdom |
| Standing Orders | Denmark (art. 24), Ireland (PM’s control of agenda, Standing Order 25), Italy (art. 116), Portugal (art. 235-237), Spain (Sec.s 173-174), Belgium (art. 91) |
of confidence was used strategically to achieve the dissolution of the Bundestag and call for new elections during a legislative term.
In 1993 the British House of Commons voted on a Government motion to adapt the Maastricht Treaty for the European Union. The two major opposition parties opposed the Government’s motion.[699] Prime Minister John Major needed solid backing from his own party, including the support from approximately twenty Euro-rebels. Prime Minister Major did not obtain enough votes and the Government’s motion was defeated. Immediately, following the negative vote, Prime Minister Major tabled a motion of confidence on his Maastricht treaty, announcing at the same time that if he lost the vote of confidence, Parliament would be dissolved and new elections would be held. The Euro-rebels then backed Major in the confidence vote. This example shows what an effect a confidence vote can have on parliamentary bargaining and how it can be used as an instrument to discipline Parliament and reverse parliamentary defeat.
In Germany the vote of confidence has so far been initiated four times.[700] When Chancellor Kohl in 1982 and Schroeder in 2005 initiated the vote of confidence, it had a special character. Both incidents had in common that the vote was solely initiated to lose the vote and as a consequence dissolve the German Bundestag as the German President does not have the right to dissolve Parliament by own initiative. Both chancellors did not have the goal to be backed up in their confidence votes.[701] This was the only way new elections could be held. This shows that vote of confidence can not only be used to discipline the Parliament but also as an instrument to enforce new elections. In 2005, both population and opposition were in favour of the dissolution. Therefore, neither the congruent Federal President nor the Constitutional Court had the wish to withstand and block the dissolution.[702] Schroeder had best prerequisites for his approach. The President belonged to his party and he could
| 1. | Initiation | f |
| 2. | Vote | f |
| 3. | Outcome | f |
Fig.
10.2 Procedural questions when drafting a vote of confidence clause
choose between different coalition partners.[703] Even though Kohl’s and Schroeder’s approach was criticised by some for bypassing the constitution and even challenged in front of the constitutional court, in the end the German Bundestag was dissolved and new elections were held.[704]
10.4.1.6 Procedural Questions
Where vote of confidence clauses exist, they usually share three and sometimes even four important procedural steps, as shown in Fig. 10.2.[705]
The procedural step is the initiation of the vote of confidence. Some countries have certain prerequisites for invoking the procedure. Others have none. The second element is the vote itself. A voting rule should be provided. And finally, the clauses often explicitly rules on the legal consequences that follow a successful or unsuccessful vote of confidence.
10.4.1.7 Structural Approach and Guiding Questions
When drafting a vote of confidence clause, various questions have to be answered, see Fig. 10.3.
10.4.2 Details of the Vote of Confidence Clause
10.4.2.1 Why Do Many Parliamentary Democracies Have a Vote of Confidence?
The confidence vote procedure is part of a broad class of institutional arrangements that formalize a Prime Minister’s dependence on majority support in the legislature.[706] Motions of confidence may be proposed by the Government with the aim of ensuring that it has the support of the majority of its complete programme, or for a single bill or policy:[707] It can therefore often be combined with any policy the Prime Minister wishes to pass or sometimes as well to validate the Prime Minister’s overall policy. Some countries go even further (e.g. Timor-Leste). In those countries a vote of confidence can be initiated on any relevant matter, see Table 10.6).
| 1. | Why do a lot of parliamentary democracies have a vote of confidence? | Necessity of mechanism | |
| 2. | Who has the power to initiate a vote of confidence? | Scope of empowerment | |
| 3. | What organ(s) and majorities are required to initiate the vote? | Scope of empowerment | |
| 4. | What are the prerequisites for invoking a vote of confidence? | Material qualification | |
| 5. | What majority is needed for the final vote? | Procedural qualification | |
| 6. | What are the time limits for the vote? | Temporal qualification | |
| 7. | What are the legal consequences of a positive or negative vote of confidence? | Outcome |
Fig.
10.3 Structural approach when drafting a vote of confidence clause
Table 10.6 | | Single bill or overall policy subject to vote of confidence
| Single bill or overall policy | Clause | Country |
| Overall policy | The Prime Minister may request from the House of Representatives a vote of confidence with regard to the governmental Programme or any other issues submitted to the house. | E.g. Belarus (art. 106) |
| Overall policy or qualified topics | The Government may request the National Parliament to take a vote of confidence on a statement of general policy or any relevant matter of national interest. | E.g. Timor- Leste (art. 110) |
| Both | The Council of Ministers shall be free to ask the National Assembly’s vote of confidence in its overall policy, its programme declaration, or on a specific issue. | E.g. Bulgaria (art. 112) |
| Both | The Prime Minister, after deliberation by the Council of Ministers, may make the Government’s programme or possibly a general policy statement an issue of a vote of confidence before the National Assembly. [...] The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. | E.g. France (art. 49) |
| Single bill | The Prime Minister may submit to the Sejm a motion requiring a vote of confidence in the Council of Ministers. | E.g. Poland (art. 160) |
| Single bill | The Prime Minister may propose that the vote on a proposal submitted by the Government be simultaneously a confidence vote. | E.g. Hungary (art. 21) |
Rather than challenging the opposition, these motions are likely to prevent dissident members of the parliamentary majority from voting against the government.[708]
The legislative process in parliamentary systems typically begins with a cabinet minister submitting a bill to parliament. Before the bill is debated on the floor, amendments in cabinets are being made. Ultimately there is then a vote on the entire bill. If the parliament’s majority rejects the bill, the Prime Minister has two choices. He either accepts the majority’s vote, which would mean the end of the bill or he uses the vote of confidence to ensure the passing of the bill. If the Prime Minister invokes the vote of confidence, each member of the Parliament votes either to accept the Prime Minister’s policy or to bring the Government down.[709] This way he can ensure the majority of the parliament.
Initiating a vote of confidence gives the Prime Minister an instrument to react to political pressure by Parliament and use it to push his policy through. It can also prevent the Parliament from a deadlock. As a downside for the Prime Minister, a vote of confidence also comes with the risk of losing his job in case of a negative vote.
10.4.2.2 Who Has the Power to Initiate a Vote of Confidence?
The first procedural step is the initiation of the vote of confidence (Table 10.7). All clauses have in common that the Head of Government or the Government as a whole can act unilaterally.[710]
The right to initiate the vote of confidence belongs to the Head of Government or the Government as a whole. In most countries the Head of Government is the Prime Minister. Even though each country uses different terms for the Head of the government, e.g. Chancellor or Council of Ministers, all reviewed clauses ultimately address the Head of government. On the other hand, in countries like Bulgaria and Portugal the Government as a collective is addressed.
10.4.2.3 What Organ(s) Are Required to Initiate the Vote?
Even though the Head of Government can most of the times act unilaterally, in a few countries the cabinet’s consultation or approval is necessary (Table 10.8).
In Australia, France and the Netherlands, the Prime Minister must formally consult the cabinet but is not bound by these consultations.[711]
In Finland, Italy, Spain and Sweden, the Prime Minister must receive the formal support of the cabinet before a confidence vote procedure can be invoked.[712]
Table 10.7 | Initiation of the vote of confidence
| Nature/main feature | Clause | Countries |
| Prime Minister | The Prime Minister may request from the House of Representatives a vote of confidence... | Belarus (art. 106 (5)), Croatia (art. 113), Hungary (art. 21), Kazakhstan (art. 61), Kosovo (art. 100), Nepal (art. 86), Rwanda (art. 127), Slovenia (art. 117), Greece (art. 84) |
| Chancellor | If a motion of the Federal Chancellor for a vote of confidence... | Germany (art. 68) |
| Council of Ministers | The Council of Ministers shall be free to ask the National Assembly’s vote of confidence... | Bulgaria (art. 112) |
| The government | The Government may ask the Assembly of the Republic to pass a motion of confidence... | Portugal (art. 193), Serbia (art. 131), Slovakia (art. 114) |
| The President of the Government | The President of the Government (...) may ask the Congress for a vote of confidence... | Spain (Sec. 112) |
| The Head of Government | The Head of Government may request the Assembly of Representatives of the people to give a vote of confidence... | Tunisia (art. 98) |
Table 10.8 | | Requirements to initiate the vote of confidence
| Nature/main feature | Clause | Countries |
| Consultation with Cabinet | The Prime Minister, after deliberating with the Council of Ministers... | E.g. France (art. 49), Spain |
| Cabinet approval necessary | The Prime Minister, upon approval by Cabinet, requests the Chamber of Deputies to pass a vote of confidence... | E.g. Finland |
10.4.2.4 What Are the Prerequisites for Invoking a Vote of Confidence? Most of the clauses only imply formal requirements for initiating a vote of confidence. For example, the German clause does not imply any material qualifications. Regardless, the German Constitutional Court ruled in 1982 (after Helmut Kohl’s vote of confidence) that the clause includes an unwritten criterion: to initiate a confidence vote an unstable situation between the Chancellor and the Bundestag is necessary.[713] In 2005 the Court further refined this unwritten criterion of the German Constitution: the federal Government has to lose its ability to act before the chancellor can initiate a vote of confidence.[714]
Table 10.9 | | Majority needed for the vote of confidence
| Voting requirement | Clause | Country |
| Single member majority | A no confidence vote decision shall be accepted if it has been voted for by the majority of the total number of members of the Croatian Parliament. Croatia (art. 113) | E.g. Croatia (art. 113), Hungary (art. 21), Serbia (art. 131) |
| Member majority of both chambers | With the approval of the President, the Prime Minister shall choose the members of his Cabinet of Ministers and shall go before Parliament to obtain a vote of confidence on his declaration of general policy. The vote shall be taken in open ballot, and an absolute majority of both Chambers is required. Haiti (art. 158) | E.g. Haiti (art. 158), Kazakhstan (art. 91.7) |
| Unclear whether 2/3 majority appty | A vote of confidence may be taken based upon his wish or a request signed by fifteen (15) Members. The Council may not decide on this matter before ten (10) days at least from the date of submitting the request or expressing the wish. A vote of no confidence against the Minister is taken by the majority of two-thirds (2/3) of the Members constituting the Council. The Minister is relieved from the Ministry effective the date of the decision of no confidence. | Qatar (art. 111) |
| By show of hands | d.To give a vote of confidence in the Prime Minister and the Council of Ministers, and in government projects, to be conducted by a simple majority vote of the total members (50%+1) by means of a show of hands to the Prime Minister and members of the Council of Ministers; | Somalia (art. 69.2) |
| Abstentions do not count | Only votes against a vote of confidence shall be counted. | Cameroon (art.34.2) |
Due to its nature as an instrument to react to pressure by parliament, it usually will only be initiated in case of a tense situation between the Government and the Parliament anyways in particular as every parliamentarian will think twice of losing their mandate and having to stand for elections again.
10.4.2.5 What Majority Is Needed?
In most countries a single majority of those voting is needed to win the vote of confidence, see Table 10.9.
Most of the countries rightly require a single member majority to deny confidence in the minister. In Belgium, Cameroon, Germany and France, abstentions always count for the Government because a Prime Minister’s motion carries unless a
Table 10.10 | | Time restrictions on the vote of confidence
| Nature/main feature | Clause | Country |
| Minimum time to elapse between motion and election | Forty-eight hours shall elapse between the motion and the election (art. 68 (2), Germany) | E.g. Germany, Slovenia (art. 117, 48 hours), Hungary (art. 21, three days) Croatia (art. 113, 7 days), |
| Maximum time limit for debate and vote to take place | Debate and vote of confidence shall be carried through not later than 30 days from the day the motion was submitted to the Croatian Parliament (art.113, Croatia). | E.g. Croatia, Hungary, (art. 21, 8 days) |
| No time restrictions | E.g. Somalia (art. 69.2) |
majority of the members elected to the lower house vote against the motion.[715] In Spain, abstentions always count against the Prime Minister because a motion of confidence is adopted only of it receives the votes of a majority of the members elected to the lower house.[716] In most of bicameral parliaments only one chamber may decide upon the vote of confidentiality, however in Romenia, Haiti and Kazakhstan e.g. both chambers in a joint session.[717] Whether in Qatar a 2/3 member majority is required also when the minister initiates the vote of confidence not sufficient clear from the text of the constitution. A simple member majority however is recommended in general.
10.4.2.6 What Are the Time Limits of the Vote?
In general, a vote of confidence can be initiated at any time. The Head of Government can initiate the vote whenever he thinks it is necessary. Most country’s constitutions do not include time specifications. In contrary, Nepal’s, Greece’s, and Slovakia’s constitutions even include the word ‘whenever’ and ‘at any time’ in its clause. This is reasonable, as the Head of Government can use the vote of confidence on every policy he wishes.
Only a few countries impose time restrictions for the procedure of the confidence vote, see Table 10.10.
Often clauses include time restrictions between the submission of the confidence motion and the Parliament’s vote on it. This rule is supposed to prevent rushed decisions and to give everyone involved time to think and make a considered decision. Croatia and Hungary and many other countries foresee a maximum time limit, stipulating a time at which the vote of confidence shall be carried through at the latest. This way the instable state between Government and Parliament does not drag on longer than it has to. A prompt confidence vote after the initiation of the procedure is in the interest of both parties.
Table 10.11 O Legal consequences following a vote of confidence
| Legal consequences | Clause | Country |
| Resignation of government | If the motion of confidence is not voted, the Prime Minister shall tender the resignation of his Government. In that case the President of the Republic may, before the acceptance of the resignation, make use of the provisions of Art. 147 [allowing the dissolution of parliament] below. | E.g. Algeria, |
| Possibility of dissolution of parliament | If a motion of the Federal Chancellor for a vote of confidence is not supported by the majority of the members of the Bundestag, the Federal President, upon the proposal of the Federal Chancellor, may dissolve the Bundestag within twenty-one days. The right to dissolution shall lapse as soon as the Bundestag elects another Federal Chancellor by the vote of a majority of its Members. (art. 68 (1), Germany) | E.g. Germany, Algeria (art. 147) |
| New elections as further possible result | If a non-confidence vote is passed by the House of Representatives, the President shall be entitled to accept the resignation of the government, or dissolve the House of Representatives within ten days, and call on holding new elections. | E.g. Belarus (art. 106) |
| Bill is not considered passed | In that event, the Bill [only applies to a Finance Bill or a Social Security Financing Bill] shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph. | E.g. France (art. 49) |
| Draft of Law shall be deemed adopted without voting | If the call for a vote of no confidence [meant is a vote of confidence, which is not rejected] does not receive the majority of votes from total number of deputies of each Chamber, a draft of law shall be deemed adopted without voting. | E.g. Kazakhstan (art. 91) |
10.4.2.7 What Are the Legal Consequences of a Vote of Confidence?
All countries that establish a vote of confidence will need to consider what will occur after the vote, especially after a negative vote of confidence (Table 10.11): Most clauses only include legal consequences in case of a ‘negative vote of confidence’. In contrast the French constitution has a special feature in this matter. It states that a positive confidence vote has the effect that a finance bill or a social security financing bill in question shall be considered adopted unless the resolution of no confidence is introduced within the next 24 hours. In India the vote of confidence is not regulated in the constitution, but only the Procedural Order under rule 198 of Lok Sabah. It has been frequently used in particular in the 1990ties. The Prime Minister resigns if the vote is unsuccessful.[718] In Kazakhstan, if a vote of confidence is successful, a draft of the law in question shall be deemed adopted without further vote. However, the Government may not use this right more than twice a year.
Generally, no clear guidelines can be provided on the consequences of a failure of the vote of confidence as it will depend on the dynamic of the respective constitutional mechanisms. However, it appears prudent that the minister who has lost the confidence of Parliament ought to resign promptly. Often the dissolution of the respective chamber is also threatening as an ultimate possibility which forces the deputies to face decision making.
10.4.2.7.1 A. Resignation of Government
In principle, Government must resign whenever Parliament rejects a confidence motion (negative vote) in the government. This duty is inherent in the accountability rule and is common to the whole family of parliamentary systems. It no longer has the required confidence. In most countries (e.g. Algeria, Czech Republic, Croatia, Guyana, Hungary, and Slovakia) the Heads of Government shall tender their resignation.
Some countries foresee an automatism, e.g. in Tunisia: should the assembly not renew confidence in the Government, the Head of the Government shall be deemed to have resigned. Therefore, a formal resignation is not always necessary.
A negative confidence vote in Germany does not force the Chancellor to take further steps, in particular he does not have to resign. Instead, he can try to form a minority Government or try to find new coalition partners. Even though there is the possibility for a minority government, it has never been practiced in Germany. A minority Government stands for instability. For every policy the minority Government has to look for new allies, who support the policy in question. Another disadvantage is that it can take therefore a long time to get policies through Parliament. In the worst case, even a political petrifaction is possible. The Bundestag can initiate a constructive vote of no confidence (art. 67). This way, the Bundestag can vote the old chancellor out of office and elect a new one. When that happens, the Chancellor loses his right to initiate the dissolution of the Bundestag.
10.4.2.7.2 B. Dissolution of Parliament
The exception to the general rule of Government’s resignation is when, as an alternative to resignation, the Government has the power to order the dissolution of Parliament and the holding of general elections, like in the United Kingdom. In Germany, and also in Belarus, the vote of confidence can also lead to the dissolution of Parliament even though the Government itself does not have the power to dissolve it. The German Chancellor may ask the Federal President to dissolve Parliament. After this question, the Federal President may dissolve Parliament, or may not. So, the decision to dissolve the Bundestag is not entirely in the hands of the Chancellor. In Belarus, the President may decide to dissolve the Parliament or may decide not to do so.[719]
10.4.2.7.3 C.
New Elections
Usually the dissolution of Parliament is combined with the holding of new elections. For the dissolution of parliament, a time limit is often defined (e.g. dissolution within 21 days—in Germany), which is recommended to provide certainty and to reduce the time in limbo of an unsupported government.
10.5