At the time this article was written Gary O'Brien
was Director of Committees and Private Legislation of the Senate.
Constitutional conventions are rules for
determining the mode in which the discretionary powers of the Crown (or of the
Ministers as servants of the Crown) ought to be exercised. Since they rarely
are made through express agreements and most often arise out of practice, their
historical origins are never clearly defined and their meanings are often
imprecise. As Sir Ivor Jennings has observed, "it is never quite certain
at what point practice becomes or ceases to be convention".
Perhaps the most important convention of
British style parliamentary government is the vote of confidence or the
principle that a government cannot continue in office without the support of
the elected members of the assembly. A strict interpretation of this convention
would mean that if a government is defeated, particularly on a whipped vote, it
must either seek to reverse the defeat, seek a vote of confidence, resign or
request a dissolution. Others would argue that the proper constitutional
response depends on the type of defeat, each of which invites a different
response from the Government. On votes of confidence, the Government is
expected to resign or request a dissolution. On items central to government policy,
it may decide either to seek an explicit vote of confidence from the House or
to resign or request a dissolution. On items not central to government policy,
it need either contemplate nor seek a vote of confidence since confidence is
not at stake. The Government decides into which category a defeat falls.1
This paper proposes to analyse the concept
of confidence as it was interpreted during the years 1780-84 in the British
Parliament. That Parliament witnessed the unprecedented resignation of the ministry
of Lord North as a result of a perceived loss of confidence of the lower House.
It also witnessed the resignation of the Shelburne Ministry due to defeats in
the Commons on government measures and the firing of the Fox-North Coalition
for its failure to carry a government bill in the House of Lords. More
importantly, the parliament provided one of the most critical debates in
British constitutional history between the opposition forces of Charles James
Fox, who held a majority in the Commons, and William Pitt, who suffered
thirteen defeats in the Commons, over whether a government can continue in
office without the support of the elected members.
North's resignation in 1782 challenged the
convention that the king had absolute freedom to choose his ministers. Although
the Crown had acknowledged nearly a hundred years earlier that it had to rule
with Parliament, the precise relationship between the King's advisors and the
Commons was not clear. Blackstone stressed that the Houses of Parliament were
not to encroach upon the royal prerogative since "if...the two Houses of
Parliament, or either of them, had avowedly a right to animadvert on the
sovereign ... the balance of he constitution would be overturned..."2
However, the realms of Parliament were to act as a check upon each other:
In the legislature, the people are a check
upon the nobility and the nobility a check upon the people, by the mutual
privilege of rejecting what the other has resolved while the sovereign is a
check upon both, which preserves the executive power from encroachments. And
this very executive power is again checked and kept within due bounds by the
two houses, through the privilege they have of inquiring into, impeaching and
punishing the conduct, not indeed of the sovereign; which would destroy his
constitutional independence; but what is more beneficial to the public, of his
evil and pernicious counsellors.3
The Commons' control of ministers was
therefore limited to impeaching them for crimes, a procedure they had to share
with the Lords. Yet it was from this procedure that the principle of
responsible government came. "From the right of condemning
ministers", Professor Pares writes, "the right of designating them
must, in the end, be deduced".4 Impeachment was obviously unsatisfactory
to the Commons. Perceived errors in policy were not necessarily crimes, the
final verdict on the fate of a minister was left to the Lords and the
proceeding could be launched only after the damage had been done. The Commons
were thus encouraged to find a more effective method of controlling the
They were also encouraged by three other
factors. By the 1780s, the cabinet had become more clearly defined as a body
which was collectively responsible for the policies of the Crown and was
standing united in the Commons. The first example of a collective resignation
of a ministry had taken place in 1746. In 1770 Lord North insisted that the
Lord Chancellor be dismissed for voting with the opposition on an important
government measure. Since the ministers responsible for policy could not be
identified, the Commons were in a position to demand that they be accountable
Secondly, the Crown had surrendered its
private sources of revenue and was more dependent than ever on Parliament for
its supplies. On assuming the throne in 1760, George III had exchanged the
Crown's hereditary income for a permanent civil list which he found was
increasingly insufficient. With dependency came the demand for accountability.
To assert that right, the Commons resolved in 1780 that it was competent
"examine and correct abuses in civil list revenue expenditures, as well as
in every other branch of the public revenue." Since it was competent to
control Crown revenue, it was also ready to declare itself competent to control
the policies of the Crown and the ministers who made those policies.
Lastly, the period saw the beginning of the
modern political party. Formations described as aggregates of personal groups
held together by friendship, common patrons and admiration for the leaders,
seemed to be giving way to disciplined ideological parties. Edmund Burke had
advanced the idea of a political party, in Thoughts on the Causes of the
Present Discontents, as a "body of men, united, for promoting by their
joint endeavors the national interest, upon some particular principle in which
they are all agreed."5 Both the Rockingham Whigs and the Fox-North
Coalition seemed to structure themselves by the Burkean model and have been
credited for laying the foundations of the modern political party.
All signs seemed to be favouring a new
constitutional convention with respect to the Commons' control of the
executive. The proceedings of the 1780-84 Parliament would be crucial in the
acceptance of the confidence principle. According to Jennings three tests must
be made to determine whether a convention exists: what are the precedents, did
the actors believe they were bound by a rule, and what are the reasons for the
North's Ministry held office at the opening
of Parliament on October 31, 1780 and resigned March 20, 1782. On February 27,
1782, it was defeated on a motion expressing opposition to the American war.
North interpreted it as no-confidence and offered to resign. In a letter dated
February 28, he wrote: "Lord North submits to His Majesty's consideration
that as the House of Commons seems now to have withdrawn their confidence from
Lord North, it will be right to see, as soon as possible that other systems can
On March 8, his government defeated by 10
votes an opposition motion critical of the funds given to the military.
Although the motion was not explicitly confidence, North interpreted it as such
and due to the fact that his majority was small again offered to resign:
...the opposition...meant by their Motions
to remove, in as little offensive a manner as possible all the administration.
This was likewise understood by the friends of Government so that the question
was, in fact, whether the Ministry should be immediately removed or not, and
yet they were saved by only ten votes.
After such a division, Lord North is obliged
to repeat his opinion that it is totally impossible for the present Minister to
conduct His Majesty's business any longer.9
On March 15, the first explicit
no-confidence motion in the House of Commons was moved but North defeated it by
nine votes. Three days later he resigned because he anticipated defeat on a
second no-confidence motion.
Your Majesty will perceive that we shall
infallibly be in a Minority even on Wednesday next, when the House will be
moved, in direct terms, to resolve That it is their opinion that the management
of public affairs ought not to be continued in the hands of the present
...the fate of the present Ministry is
absolutely and irrecoverably decided; The votes of the Minorities on Friday
last contained, I believe, the genuine sense of the House of Commons, and I
really think, of the Nation at large... The torrent is too strong to be
resisted; Your Majesty is well apprized that, in this country, the Prince on
the Throne, cannot, with prudence, oppose the deliberate resolution of the
House of Commons: Your Royal Predecessors... were obliged to yield to it much
against their wish in more instances than one: They consented to changes in
their Ministry which they disapproved because they found it necessary to
sacrifice their private wishes and even their opinions to the preservation of
public order, which are the natural consequence of the clashing of two branches
of the Sovereign Power in the State... The Parliament have altered their
sentiments and... their sentiments whether just or erroneous, must ultimately
The Rockingham Ministry (March 27, 1782 -
July 1, 1782) was not subject to any censure motions and was not defeated on
any government measure but the Shelburne Ministry (July 2, 1782 - February 24,
1783) suffered two defeats, both relating to the provisional Peace Article with
Finance, Spain and America. On February 23, 1783 Shelburne offered to resign:
"I am deeply concerned to find it the
universal sense of Your Majesty's Servants in the House of Commons, that any
further attempt to carry on Government on the part of Your Majesty's present
Servants would be vain and highly prejudicial to Your Majesty. The State of the
Navy, the Disarmament, the Loan besides other points cannot admit of further
delay, and it will be impossible to prevail on Your Majesty's present Cabinet
to decide on any of them, after all that has now passed the House of
The Fox-North Coalition (April 2,
1783-December 18, 1783) was not defeated in the Commons on any government
measures. The East India Company Bill was carried at third reading 108 to 102.
Yet the Bill was defeated in the Lords by a majority of 19 voted on December
17. The next day the King dismissed the Ministry.
The Pitt Government was appointed December
19, 1783, and was in office when Parliament was dissolved on March 24, 1784. It
was censured by five no-confidence votes and defeated on one item central to
government policy, namely the East India Company Bill. Despite repeated
opposition demands to do so, Pitt refused to resign. Speaking in the Commons on
February 2, he said: With regard... to the resignation or ministers, he saw no
reason for it. If the House insisted upon their going out, there were two
constitutional means open to them, either by impeachment to proceed against
them for their crimes, if they had committed any, or by an immediate address to
the crown to desire their removal. The removal of ministers lay with the crown
and not with that House; in remaining in office, therefore, with a view to keep
the country from anarchy and confusion, and to prevent the government from
falling prey to that administration which they had removed, and suffering them
to force themselves upon the sovereign against his will, was neither illegal
nor unconstitutional... The present administration, not having resigned because
they had not the support of that House, was by no means contrary to law or the
Did the Actors Believe They were Bound by
North and Shelburne felt bound by the rule
that if the government lost the confidence of the House, it must resign. North
felt the test of confidence was not a simple majority but a substantial
majority: a margin of nine or ten votes was not enough. Neither Prime Minister
requested a dissolution instead of resigning. Pitt refused to be bound by the
confidence principle and held to the earlier convention that the selection of
ministers belonged to the King.
The greatest roadblock to the acceptance of
the vote of confidence was the King. George III never believed that his
ministers had to have the support of the House of Commons. In 1779, when North
was defeated on an important bill and offered to resign, George wrote:
"I am sorry Lord North takes so much to
heart the division of this day; I am convinced the Country will never repair a
proper tone unless Ministers as in the Reign of King William will not mind
being now and then in a Minority particularly on subjects that have always
carried some weight with popular Opinions; if it comes to the worst the Bill
will be thrown out in the House of Lords...?13
Like Pitt, he held that ministers could only
be removed through the procedure of impeachment in which a charge was laid:
since no charge had been brought forward against Putt's government, he was
under no obligation to dismiss it.
George III had been reluctant to call the
Rockingham Whigs to office and so abhorred calling the Fox-North Coalition,
that he contemplated abdication. After dismissing the Coalition, he wrote:
The political struggle is not, as formerly,
between two factors for power, but it is no less than whether a desperate
faction shall not reduce the Sovereign to a mere tool in its hands; though I have
too much principle ever to infringe the rights of others, yet they must equally
prevent my submitting to the executive power being in any other hands than
where the Constitution has placed it...My cause...is that of the Constitution
as fixed at the Revolution and to the support of which my family was invited to
mount the Throne.14
The King recognized that the Coalition's
rise to power was constitutionally significant. It had insisted on excluding
the King from appointing any of the junior ministers and approximated a modern
political party in that it had a disciplined majority in the Commons. Because
it threatened his constitutional power, he used the defeat of the East India
Company Bill as a pretext for firing it.
In opposition, the Coalition insisted that
the confidence principle be upheld. They did not deny:
...His Majesty's undoubted prerogative of
appointing to the executive Offices of State such Persons as to His Majesty's
Wisdom shall seem meet; but at the same time, that we must, with all Humility,
again submit to His Majesty's Royal Wisdom, that no Administration, however
legally appointed, can serve His Majesty and the Public with Effect, which does
not enjoy the Confidence of this House...15
Fox called Pitt's refusal to resign
"the bases tyranny and calculated to accomplish the ruin of the liberties
of the country". He asked: "Did it not completely overthrow (the
Commons) power in the constitution? Did it not reduce them to a state of the
most perfect non-entity and insignificance...Did it not strip them of all the
power and privileges with which time, the constitution and the people of
England had vested them?"16
The Reasons for the Convention
Although the English electoral system at
this time was characterised by rotten boroughs, an extremely restricted
franchise and dominated by political patrons who controlled many of the seats
in the Commons, the House seemed to look upon itself as the spokesman of the
people. Often in the debates on the non-confidence motions moved against Pitt,
members referred to themselves as "representatives of the people".
Fox unquestionably embraced the democratic principle.
A precise definition of who the `people' was
never made, yet one is struck by the democratic liberalism which pervaded the
Coalition's argument. It was the liberty of the people that the House was to
protect and the liberty was threatened by the refusal of Pitt to resign.
A second reason was that the royal
prerogative should not be independently exercised. It could no longer be an
absolute right: it could only be a `functional' right. Lord North brazenly
declared that the Crown prerogative "could receive efficacy only from the
support and confidence of parliament: without these it would be a scarecrow
prerogative and without them the king would be a nobody."17 Fox believed
the prerogative of the Crown was basically hollow:
A good deal has been said respecting the
prerogative of His Majesty to choose its ministers. The same observation is,
however, applicable to this exertion of privilege as to every other of a
similar nature. The crown has an exclusive right to make peace or war; but
though it is invested with this privilege, would it be safe to exercise it
without consulting parliament? I am sure it would not; I am equally satisfied
that the prerogative in the election of ministers in opposition to the House of
Commons, is a measure as unsafe, as unwarranted and as unjustifiable.18
The last reason, and perhaps the most
important, was that without the confidence of the House a government would be
politically inefficient and the stability of the state would therefore be
threatened. Both North and Shelburne believed it was in the best interests of
the King that they resign. North had told the King that "if by remaining
in office I could serve your Majesty, I would run any risk; But Your Majesty's
affairs grow worse by every hour that my removal is delayed."19 He
reminded the King that his predecessors had changed Ministers, despite their
private wishes, for "the preservation of public order, and the prevention
of those terrible mischiefs, which are the natural consequence of the clashing
of two branches of the Sovereign Power in the State.:20 Shelburne said it would
be "highly prejudicial" to the King if his government carried on,
noting that the "State of the Navy, the Disarmament, the Loan besides
other important points cannot admit of further delay".21
Despite being in a minority, Pitt was able
to manage to secure two items which were central to government policy, namely,
the Mutiny Bill and the Appropriate Act. The fact that the opposition did not
stop these two measures was perhaps a tactical error. Although it flaunted the
confidence in the face of the Coalition, it showed itself to still be
politically efficient: the King was not absolutely compelled to bow to the
wishes of the Commons.
The vote of confidence arose from the
inadequacy of the impeachment procedure, the identification of the cabinet as a
collective body responsible for government policy, the dependency of the Crown
on the Commons for all public revenues, and the rise of the modern political
party as witnessed by the Rockingham Whigs and the Fox-North Coalition.
Confidence was originally interpreted more as a perception of waning support
for government policies in the Commons as opposed to a numerical defeat in that
assembly. North believed he could not continue with a majority of only nine
even resigned before he was formally defeated in the House. Neither North nor
Shelburne were defeated on explicitly non-confidence motions yet defeats on
items central to government policy were interpreted by them as a want of
confidence. Neither Prime Minister, nor Pitt for that matter, requested a
dissolution following their defeats in the Commons. It is obvious that the vote
of confidence was not a constitutional convention by 1784.
It would be another generation before one of
the driving forces behind the confidence principle i.e. the modern political
party, would be strong enough to establish it as a constitutional convention.
Until them the Crown was not bound by it. Yet the Parliament of 1780-84 did
establish important precedents and illustrated the reasons for the convention
which is the cornerstone of responsible government as we know it.
1. See Philip Norton, "Government Defeats
in the House of Commons: Myth and Reality", Public Law, (Winter
1978) pp. 360-378.
2. Sir William Blackstone, The
Commentaries on the Laws of England, John Murray, London, 1876, Volume 1,
3. Ibid. p. 123.
4. Richard Pares, King George III and the
Politicians, Claredon, Oxford, 1953, p. 205.
5. Edmund Burke, Works, volume 1,
Samuel Holdsworth, London, 1842, p. 151.
6. See Sir Ivor Jennings, The Law and the
Constitution, 5th edition, University of London Press, London, 1959, p.
7. Ibid. p. 136.
8. J. Fortescue, The Correspondence of
King George III, Macmillan, London, 1928, No. 3535.
9. Ibid., No. 3546.
10. Ibid., No. 3566.
11. J. Fortescue, op. cit., No. 4130.
12. The Parliamentary History of England,
Volume xxiv, pp. 483-4.
13. J. Fortescue, op. cit., No. 2536.
14. J. Fortescue, Historical and Military
Essays, Macmillan, London, 1928, pp. 45-6.
15. House of Commons, Journals, March
16. The Parliament History of England,
Volume xxiv pp. 476, 599.
17. Ibid., p. 291.
18. Ibid., p. 476.
19. J. Forescue, The Correspondence of
King George III, No. 3568.
20. Ibid., p. 395.
21. Ibid., p. 247.