Confidence, Dissolution and the Life of a Government

The pattern

Notice what the comparison shows.

Where dissolution is easy, confidence is easy too, and the government's life is short and the electorate decides often. India, the United Kingdom and Ireland.

Where dissolution is hard, confidence is hard too. Germany makes both difficult: article 67 requires a positive alternative, and article 68 requires a lost confidence vote.

Where there is no confidence, there is no dissolution. The United States and Switzerland both have fixed terms for both organs.

That correlation is not accidental. A system that lets a legislature dismiss a government easily must give the government a way to appeal over its head, or the legislature would be sovereign over the executive without limit.

A worked example

A government with a narrow majority loses a vote on its budget.

India. Loss of a money vote is treated as loss of confidence. The Prime Minister resigns or advises a dissolution under article 85(2)(b). If he resigns, the President invites the person most likely to command a majority and requires a floor test on the S.R. Bommai principle.

Germany. Losing a budget vote does not remove the Chancellor. Article 67 requires the election of a successor. If none is available, the Chancellor may move a confidence vote under article 68, lose it deliberately, and seek a dissolution, or may govern without a budget under the transitional rules in article 111 of the Basic Law.

United Kingdom. By convention, loss of supply is loss of confidence, and the Prime Minister resigns or seeks a dissolution under the revived prerogative.

United States. A failure to appropriate closes parts of the federal government and does not affect the President's tenure at all. The shutdown is the American substitute for a confidence crisis, and it resolves nothing about who governs.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from Presidential proclamations under article 356 dismissing State ministries, in several instances on the Governor's report and without a vote in the Assembly.

Held, by nine judges. The proclamation is justiciable; the satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing whether a ministry retains majority support; and the Assembly should not be dissolved before both Houses of Parliament approve the proclamation.

Why it matters here. It converts confidence into a fact ascertainable in the House rather than an opinion formed by the Governor, and the requirement that dissolution await parliamentary approval protects the legislature against the executive's half of the mechanism.

Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned the prorogation of Parliament for five weeks, which is not dissolution but has a similar effect of removing the legislature from the field.

Held, unanimously by eleven Justices. The advice was unlawful and the prorogation null and of no effect, because a prorogation that frustrates or prevents, without reasonable justification, Parliament's ability to carry out its constitutional functions is outside the power.

Why it matters here. It is the only modern judicial control anywhere of the executive's power to send the legislature away, and section 3 of the 2022 Act is Parliament's answer to it for dissolution.

Distinctions

What beginners get wrong

"The Constitution provides for a no confidence motion in India." It does not. Article 75(3) states the responsibility; the motion is a matter of the Rules of Procedure of the House.

"Prorogation and dissolution are the same." Prorogation ends a session; dissolution ends the Parliament and requires an election. Article 85(2)(a) provides for prorogation and article 85(2)(b) for dissolution.

"An American government shutdown is like losing confidence." It is not. The President's term is unaffected, and the shutdown ends when Congress appropriates.

Limits and criticism

Dissolution favours the incumbent. A Prime Minister who chooses the election date chooses the most favourable one, which is why the Fixed-term Parliaments Act 2011 was enacted, and its repeal in 2022 restored the advantage.

Confidence is weak against a disciplined majority. A no confidence motion cannot succeed while the majority holds, so the real check is the party, not the House.

Judicial control of the executive's half is contested. Miller No 2 was answered by an ouster clause within three years.

Quick revision

1. Confidence and dissolution are two halves of one mechanism.
2. India: article 75(3) responsibility, simple majority, motion under the Rules; article 85(2)(b) dissolution on advice; article 83(2) five-year term.
3. Germany: article 67 constructive vote; article 68 dissolution only after a lost confidence vote; article 39 four-year term.
4. Ireland: Article 28.10 resignation on loss of majority; Article 13.2.2 discretion to refuse a dissolution.
5. United Kingdom: sections 2, 3 and 4 of the Dissolution and Calling of Parliament Act 2022.
6. United States and Switzerland: neither confidence nor dissolution; fixed terms for both organs.
7. S.R. Bommai: the floor of the House; no dissolution before both Houses approve a proclamation.

Test yourself

1. Why do confidence and dissolution go together? Because each is the counterweight to the other. If a legislature could dismiss a government at will and the government could not appeal to the electorate, the legislature would control the executive without limit; if a government could dissolve at will and could not be dismissed, the executive would control the legislature. The systems that make one hard make the other hard too, which is why Germany requires a successor under article 67 and a lost confidence vote under article 68.

2. Where in the Indian Constitution is the no confidence motion? Nowhere. Article 75(3) provides that the Council of Ministers shall be collectively responsible to the House of the People, and article 75(2) that ministers hold office during the pleasure of the President. The motion itself is regulated by the Rules of Procedure and Conduct of Business in the Lok Sabha and requires a simple majority of those present and voting.

3. What is the Irish President's power under Article 13.2.2, and why is it unusual? He may in his absolute discretion refuse to dissolve Dail Eireann on the advice of a Taoiseach who has ceased to retain the support of a majority in the Dail. It is unusual because it gives a head of State a real, exercisable discretion at precisely the moment a government is most likely to want an election, and because it is one of the few Irish presidential powers not subject to Article 13.9's requirement of acting on advice.

4. Compare an American shutdown with an Indian defeat on a money Bill. In India a defeat on a money vote is treated as loss of confidence: the government resigns or advises a dissolution, and the question of who governs is reopened. In the United States a failure to appropriate closes parts of the federal government under Article I section 9, and the President's four-year term is unaffected; nothing about who governs is decided, and the crisis ends when Congress passes an appropriation.