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.
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 www.cabinetoffice.gov.uk/media/cabinetoffice/propriety_and_ethics/assets/electguide.pdf
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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