A thread on how the PM might make a case to the Queen that he should be allowed to stay on following an FTPA section 2(4) vote of non confidence, despite the presence of a viable alternative government.
Prior to FTPA, a PM who lost a vote of no confidence could request a dissolution. This would usually be granted, provided that six months or so had elapsed since the last election. The presence of a viable alternative didn’t necessarily mean that the request would be refused.
The FTPA has removed the Queen’s prerogative to refuse dissolution, hence the PM’s ability to request one if there’s a vote of no confidence. However, the PM could argue that the convention as it existed before should be grafted onto the FTPA.
If you graft the previous convention onto the FTPA, you could argue that a section 2(4) should either allow the PM to regain confidence under section 2(5), allow for an alternative govt, or, and this is the key, allow the PM to face the electorate after waiting 14 days.
Put differently, the PM could argue that he should have the same options that PMs had prior to FTPA: resignation or dissolution. The only difference now, he could argue, is that dissolution is triggered by FTPA rather than the Queen’s prerogative.
The PM could also used a commonly argued point about FTPA to strengthen his case, namely that the Act doesn’t alter the confidence convention. Hence, he could argue that, in the past, a vote of no confidence would usually lead to a dissolution, not resignation.
So, if the FTPA doesn’t alter convention, as is often said, then the PM could argue that the option of waiting out the 14 days after a section 2(4) vote to trigger a dissolution is in keeping with past convention, only in an FTPA environment.
Now, the counter argument would be that the FTPA explanatory notes and para 2.19 of the Cabinet Manual indicate that the PM must resign if they’ve lost confidence and there’s a viable alternative government.
The issue here is that the explanatory notes don’t say that there must be an alternative govt after a section 2(4) motion succeeds. They say that the section allows for an alternative govt. as important, when there is no alternative govt, the existing govt must stay on.
That leaves 2.19 of the Cabinet Manual. 
While the Cabinet Manual makes clear that the PM is expected to resign if another govt has confidence, it also states that the existing government can seek to regain confidence. A crafty PM could say he’s not ready to resign yet because he’s trying to regain confidence.
There’s also a bit of complexity here, namely how an MP who isn’t the PM clearly demonstrates that they hold confidence. Maybe a motion, a humble address. But could a determined PM still argue that they can try to regain confidence regardless?
And in the absence of a motion or a humble address, the PM could argue that the alternative govt doesn’t have ‘clear’ confidence, since the Commons hasn’t formally expressed itself.
Finally, getting back to the convention issue, the PM could tell the Queen that the electorate should be asked to settle the issue since Parliament has sat long enough, and that if the alternative govt truly feels that they’d carry it, then they should do so.
The Queen, of course, would be exposed no matter what she decides to do. If she dismisses the PM, that will be controversial no matter how justified, and partisans will make a big deal about it. If she doesn’t dismiss and let’s the PM stay on, also controversial and a big deal.
The PM’s decision to stay on would be what drags the Queen into a controversial decision, but she’d still be in the political fray at that point.
In closing, there are ambiguities in the FTPA and the Cabinet Manual that could be used by the PM to make his case, albeit one that depends on very hardball tactics.
One last point: my own view is that the FTPA should be amended to make a distinction between votes of no confidence demanding the government's resignation and those that allow the existing government to regain confidence in 14 days or face an election.
Ok one more. There are nuances around the relationship between confidence and dissolution that need to be taken into account as they existed prior to FTPA and still exist in Canada today. Here's a snippet from my article on govt formation.
