Constitutional processes following a general election - Justice Committee Contents

2  Evidence heard

"Hung" Parliament

7. We regard the term "hung Parliament" as an unavoidable idiom, but we believe that it would be better to use the phrase "no overall majority" in formal guidance and official discourse, as it is more accurate and contains rather fewer pejorative connotations.

Issues raised

8. Discussions with our witnesses, prior to the appearance of the current Cabinet Secretary, ranged very widely. Subjects raised by witnesses included such topics as: the importance of protecting the role of the Sovereign from the appearance of involvement in political considerations;[13] the role of the House of Commons as, effectively, an 'electoral college' for the selection of a government;[14] the benefits and disadvantages of almost instantaneous decision-making in forming any new administration;[15] and practical considerations of how the House might best demonstrate confidence, or a lack of it, in a prospective administration.[16] These discussions are published in full with this report.

9. The two key areas arising from this evidence, that we later pursued with Sir Gus O'Donnell, were as set out below.

  • The agreement, and publication, of a clear statement of principles—a "caretaker convention"—applying to government business in the period between the announcement of an election and the formation of a new government. This included the issues of safeguarding such principles, how diversions from them might be dealt with and the importance of avoiding administrative inertia or paralysis.[17]
  • The agreement of effective arrangements for pursuing and supporting the business of negotiations between government and opposition parties in circumstances when the election has not returned an overall majority for any one party and it is not immediately clear who could form a government commanding the confidence of the House.[18]

Caretaker principles

10. Evidence from our academic witnesses and former senior civil servants made it clear that the existing conventions—currently known as "election purdah"—on the parameters of acceptable government activity and decision-making in the period between the announcement of an election and the formation of a new government needed clarification and strengthening. This would be particularly sensitive and important if it appeared likely that there might be any substantial period, after polling day, before a new government was in place.[19] Our evidence demonstrated that it needed to be clear that, until a government has established that it can command an overall majority in the Commons, the "caretaker" principles, which applied prior to polling, should continue to be applied.[20]

11. The draft chapter published by the Cabinet Office currently states:

    As long as there is significant doubt whether the Government has the confidence of the House of Commons, it would be prudent for it to observe discretion about taking significant decisions, as per the pre-election period. The normal and essential business of government at all levels, however, will need to be carried out.[21]

The Cabinet Secretary, Sir Gus O'Donnell, conceded that, even as it stood, this was "civil service speak" for a sterner injunction than it appeared. He said: "personally, the stronger this is the better from my point of view".[22] He emphasised that this was not a "power grab" by the civil service and while "hard and fast" rules were impossible, clarity over the principles was important.[23]

12. We also asked about the steps to be taken in circumstances where Ministers and civil servants disagree on the application of "caretaker principles" (or where Ministers explicitly decide to set the principles aside). Sir Gus O'Donnell said:

    "If we get to a situation where a Prime Minister wanted to do something during that [caretaker] period where there was not all-party agreement then ... we would have to say "That can only be done, Prime Minister, if you direct me to do it" and we would make that direction available in the normal way to Parliament."[24]

He drew an analogy, as had our other witnesses, to long-standing procedures for departmental accounting officers to require Ministerial directions[25] in certain circumstances, and the arrangements for making them public via the Comptroller and Auditor General and the Public Accounts Committee.[26]

13. We agree with our witnesses that there should be more clarity in this area on a number of points:

  • The term "caretaker" is clearer and more meaningful than "purdah" and should be used in formal guidance.
  • The period in which "caretaker" principles should apply should be defined (and the extra restrictions that apply to government activity, especially communications, in the run-up to polling day should also be set out).
  • The fact that a "caretaking" period has commenced, or concluded, should be explicitly announced.
  • The "caretaker" principles should be as clear as possible on the sorts of decisions that need to be avoided, deferred and/or consulted upon with opposition parties. Clearly there are some issues and some circumstances in which delay can be extremely damaging to a particular industry, to the supplier who has bid for a contract or to a whole industry or sector. Conventions need to be in place to facilitate agreement by consensus across the parties on such matters.
  • A procedure should be established for mediating and, if necessary, making public, differences of opinion between Ministers and the civil service on the application of the "caretaker" principles.

14. We propose the addition of text along the following lines to the Cabinet Manual draft chapter on elections and government formation, augmenting or replacing existing provisions as appropriate.

    Caretaker principles

    Once the Monarch has agreed to a dissolution, and the Prime Minister has announced an election, constraints apply to the way government should conduct business—the "caretaker principles".

    The caretaker period extends from the granting of dissolution and announcement of an election until the formation of a government commanding the confidence of the House of Commons. The start and finish of this period is the subject of formal announcement. This is a development and clarification of the period formerly known as "election purdah".

    In caretaker mode, the government retains its responsibility to govern and ministers remain in charge of their departments. Essential business is carried on. However, ministers must exercise care not to bind future governments. This means the deferral of:
  • taking major policy decisions
  • entering into significant government contracts
  • making senior public appointments

      provided that such postponement would not be detrimental to the national interest or wasteful of public money.

      If decisions cannot wait, they should, where possible, be handled by (a) temporary arrangements (e.g. extending a board appointment, or rolling over a contract for a short period); or (b) consultation with opposition parties. The Cabinet Office can be consulted about appointments, and the Office of Government Commerce about government contracts. Consultation with the opposition parties must be done through, or with the authority of, Ministers who can consult the Cabinet Office in cases of doubt.

      As soon as a general election is announced, the Cabinet Office issues guidance to departments on their activities during the caretaker period. Within this period, there are additional restrictions on some forms of activity by civil servants and government departments prior to polling day. These include avoiding competition with Parliamentary candidates for the attention of the public and ensuring that any material produced is impartial.[27]

      The principles applying to government activity during the caretaker period should not be treated as an excuse for inactivity or inertia; the primary aim is the avoidance of binding decisions of a politically contentious nature. Responsibility for advice on the interpretation and application of the rules rests with departmental permanent secretaries and, ultimately, the Cabinet Secretary. Responsibility for decisions rests with Ministers and, ultimately, the Prime Minister. It is open to permanent secretaries or the Cabinet Secretary to require a Ministerial direction—equivalent to those for accounting officers—before proceeding with a policy decision where formal objection to the Minister's proposed course of action has been made because of concerns about propriety under the caretaker principles. Such directions, together with the reasoning provided by permanent secretaries, or the Cabinet Secretary, should be made public by the department immediately and laid before both Houses at the first opportunity after the new Parliament has met.

    15. We recommend that the Cabinet Secretary adopts these substantive points which reflect the discussion held when he gave evidence to us.

    Government formation

    16. The fundamental constitutional principle that the person who can command the confidence of the House of Commons is invited by the Sovereign to form a government is clear.[28] However, there is limited experience of determining who that person is in circumstances where an election has not returned a party with an overall majority in the Commons.[29] It is also clear that the government is not directly elected by the electorate and the incumbent Prime Minister does not have to resign until the confidence of the House of Commons has been explicitly withheld, for example by losing a vote on the Queen's Speech.[30] It is now inconceivable that a Prime Minister would not resign as soon as it became apparent that an opposition party had gained an overall majority in the House.

    17. What is not possible, in any imaginable circumstances, is for a Prime Minister, facing a House without an overall majority, to ask the Sovereign for a further dissolution before that House has met.[31] Lord Turnbull drew our attention to the "Lascelles principles" which refer to the conditions under which a request for a dissolution might be denied by the Sovereign. These are:

    • the existing Parliament was still vital, viable, and capable of doing its job
    • a general election would be detrimental to the national economy
    • another Prime Minister could be found who could carry on the government, for a reasonable period, with a working majority in the House of Commons.[32]

    18. In addition, Lord Butler and Professor Hazell both referred to what Professor Hazell described as the "political self-correcting mechanism" where a politician who caused a repeat election—for which the electorate did not see justification—would be very likely to be heavily "punished at the polls".[33]

    19. Our witnesses were unanimous that, in circumstances of a House with no overall majority, it was for the politicians to conduct negotiations to clarify who was most likely to be able to command the House's confidence and the Sovereign would not, and should not be expected to, take a role in that process. Professor Bogdanor told us that, in circumstances of a compact or coalition, "cast iron" and "public" evidence of the agreement would be required in the form of an endorsed text.[34] Sir Gus told us that it was the "responsibility" of the incumbent Prime Minister not to resign until the position was clear.[35] Other witnesses described this as a "national duty" of the Prime Minister,[36] above and before party political considerations, as primary adviser to the Crown (but by no means the sole source of information[37]).

    20. The factors and considerations in play during negotiations between government and opposition parties to determine the person to be invited to form a government are impossible to predict, not least without knowing the shape and character of the election result. It is clear from the draft chapter produced by the Cabinet Office, and emphasised by Sir Gus in evidence to us, that support from Cabinet Office personnel is envisaged—and indeed has already been authorised by the present Prime Minister—to assist the administration and process of negotiations, not only between government and opposition parties, but also between opposition parties themselves, in any period of discussion of government formation.[38] These arrangements should be set out in the Cabinet Manual.

    13   Qq 13,14, 17, 22, 59, 61-2, 74, 78, 80-1, 109-10 Back

    14   Qq 10, 19, and 78 [Bogdanor] Back

    15   Qq 2, 9, 10 and 50 Back

    16   Qq 64 and 72-77 Back

    17   Qq 36-47, 62-63, 65- 66, 68-71 and 87 Back

    18   Qq 24-30, 34, 86, 110, 112-116 Back

    19   Qq 65-71 Back

    20   Qq 66 and 92 Back

    21   Ev 25, para 20 Back

    22   Qq 98-99 Back

    23   Qq 104, 88 and 87 Back

    24   Q 89 Back

    25   A Minister may direct an accounting officer [senior official with special responsibility for oversight of expenditure] to proceed in accordance with a ministerial policy decision despite formal notification from that officer of an objection to the proposed course of action on grounds of propriety, regularity or value for money. Such directions are copied to HM Treasury and the Comptroller and Auditor General (NAO) who may forward them to the Committee of Public Accounts. In this context, such directions are exempt from the general rule that civil servants do not disclose advice to Ministers. (See Guide to the scrutiny of public expenditure, HM Treasury, chapter 4, Giving evidence before the PAC, pp 21-2.) Back

    26   Qq 90-91 and 104 and see Qq 36-42 and 67 Back

    27   The guidance to Government departments issued in 2005 is available at  Back

    28   Qq 1 and 59 Back

    29   Q 87 Back

    30   Qq 1 and 19 Back

    31   Qq 15, 16, 59 and 83 Back

    32   Sir Alan Lascelles, then Private Secretary to King George VI, writing under the pseudonym "Senex" to the Editor of The Times. Published, 2 May 1950. See Qq 15 and 16 Back

    33   Q 83 and see Q 16 Back

    34   Q 80 and see Q 19 Back

    35   Q 110 Back

    36   Qq 54-56 and see Qq 13-14 Back

    37   Qq 18, 60 [Riddell], 61, 80, 83 and 109 Back

    38   Qq 27-30, 86-87 and 112 Back

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