Memorandum from Professor Robert Hazell,
the Consitution Unit, UCL and Peter Riddell, Institute for Government
OPENING THE DOOR TO THE SECRET GARDENA
PLEA FOR REVISED PUBLIC GUIDANCE ON HOW GOVERNMENTS ARE FORMED
In this submission, we examine the gaps in ministerial
and executive guidance in the UK which have been revealed in the
course of our work on preparing for a possible change of government,
and the possibility of a hung parliament. The British public,
the media and financial markets are ill prepared for a hung parliament,
and there is an urgent need for greater clarification and publication
of the unwritten conventions which apply, in order to avoid potentially
damaging uncertainty and misunderstanding in the media and financial
We have examined the ministerial guidance available
in comparable Westminster systems: Australia, Canada, New Zealand,
and Scotland. This is presented in tabular form in section 2 of
our submission, with more detail about each country in Appendix
1. As a result of this comparison, we find that guidance in the
UK is seriously lacking in several areas: guidance materials are
often thin, difficult to locate, out of date, or simply non-existent.
Given the forthcoming election and the uncertainty of the result,
there is a serious need for drawing together, updating and in
some cases drafting guidance on key aspects of executive practice.
In particular, the United Kingdom should consider
Drafting guidance on the role of the
Crown in government formation.
Drafting more detailed guidance on the
Revision of the guidelines on transitions
ahead of general elections.
Drafting an induction guide to ministerial
Updating current guidance documents,
and if possible clarifying and consolidating them into one document.
The need for clearer guidance on the role of
the head of state in government formation, on what happens if
there is a hung parliament, and on the caretaker convention is
particularly urgent. Guidelines on these issues should be published
before the general election campaign starts, if necessary ahead
of the completion of work on a more comprehensive statement. If
a draft is available, the relevant sections could form guidance
for the election campaign. These documents should be made publicly
accessible; and their drafting and revision subject to consultation.
A Cabinet Manual should be comprehensive, covering
the same broad subjects as the New Zealand Manual; acceptable
to Ministers, who must find it a useful and practical guide; written
in plain language, principle not rule based; and based upon consultation,
so that it commands wider legitimacy, and will be accepted and
used by future governments.
1.1. The British public, media and financial
markets are ill-prepared for a hung parliament, in which no single
party has a majority of seats in the House of Commons. Our aim
in making this submission is neither to predict nor to advocate
a hung parliament, a minority administration or coalition, but
to argue for urgent public clarification of certain unwritten
conventions and understandings that will apply if no party wins
an overall majority at the forthcoming general election. Our focus
here is on the procedures for the formation of governments.
1.2. Our concern arises from the work we
have been doing on minority administration and transitions over
the past year.
The discussions and seminars held following the publication of
our reports on these two subjects, as well as public comments
made by leading politicians and commentators about the impact
of a possible hung parliament, have highlighted widespread ignorance
about the constitutional and political position in this eventuality.
1.3. There is a serious danger of speculation
and instability in financial markets if such an outcome begins
to look probable. Warnings about the dangers of a hung parliament
could become self-fulfilling, producing the jitteriness and worse
in the media and the markets that they are seeking to avoid. The
Financial Times reported on 8 February about the heightened fears
in the government bond market that the coming election could produce
a hung parliament. Much of this concern rests on the assumption
that a minority administration would be indecisive and be unable
to take decisive fiscal action, which is not bound to be the case.
There are also fears about delays and uncertainties in the formation
of any minority government. A Bloomberg report on 20 January quoted
a senior financial analyst saying that the four days of negotiations
after the February 1974 general election had created "real
uncertainty". He added: "One could imagine that today's
market will be flying around a lot on the uncertainty. If the
result is unclear, the real-money investors will be holding back
waiting for information, leaving the market to the traders".
In these circumstances there is bound to be debate about who governs
until a new administration is formed and what role the monarch
1.4. There are well-established conventions
for dealing with such a situation, understood by most of the main
players, but less so by those outside. They were applied after
the February 1974 election, and were re-examined ahead of the
1992 election when many politicians, and pollsters, expected a
similar outcome, which did not, in the event, materialise. However,
these conventions are largely unwritten and uncodified, partly
because of a desire on all sides to keep the monarch out of essentially
party political negotiations. But such secrecy and insider understandings
will no longer work in an era of 24 hour news and instant comment
on the internet, let alone interlinked global financial markets.
1.5. The unwritten and implicit have to
be made written and explicit. In most cases, this need not amount
to any change in long-established constitutional understandings,
though there are areas of ambiguity which need to be clarified.
This should be via a Cabinet Manual, as in other comparable Commonwealth
countries, notably New Zealand. Such a manual should cover the
rules for the formation of governments and caretaker conventions
to include the period after an election until a new permanent
government is in place.
1.6. We therefore strongly welcome the announcement
by the Prime Minister on 2 February that Sir Gus O'Donnell, the
Cabinet Secretary, has been asked "to lead work to consolidate
the existing unwritten, piecemeal conventions that govern much
of the way central government operates under our existing constitution
into a single written document".
1.7. However, this process is inevitably
likely to take some time and may not be completed until after
the election campaign starts, probably around Easter if there
is a general election on 6 May, as widely expected. It is therefore
vital either that work on the sections affecting the formation
of governments and caretaker conventions is accelerated, or that
a separate statement on these matters is issued by the Cabinet
Office before the end of March. This would reaffirm the existing
implicit understandings and clarify some present uncertainties.
In particular, there is ambiguity about the length of the pre-election
"purdah" period, when departments avoid making controversial
announcements, appointments and contract decisions which cannot
be put off. At present this ends on polling day, but, as in Commonwealth
countries with formal caretaker conventions, such as Australia,
Canada and New Zealand, this period should be extended until a
new administration is appointed or re-appointed. We offer in sections
5 and 6 of this submission possible drafts of the convention on
government formation, and the caretaker convention.
1.8. Any Cabinet Manual, or "single
written document", bringing together "existing unwritten
piecemeal conventions", should not be the property of any
single political party. The process of redrafting should be under
the control of the Cabinet Secretary, but there should be consultation
outside Whitehall, involving Parliament and others, to ensure
wider public and political acceptance. Completion of discussions
and drafting will take time, and if this process cannot be completed
before the campaign starts, those sections about the formation
of governments and caretaker procedures could be published in
draft form or as part of an interim public statement before the
election campaign starts.
Comparison of Ministerial Guidance Documents in
1.9. In preparing this submission we have
examined and compared ministerial guidance documents in four other
Westminster jurisdictions. On the basis of this comparison, we
find that the United Kingdom is seriously lacking in several areas.
There are a number of powerful reasons why the UK government should
consider updating, revising and consolidating the key guidance
documents on executive practice.
1.10. First, the imminence of the general
election, and the attendant financial uncertainty referred to
above. Given this uncertainty, the principles and rules governing
executive conduct should be as clear as possible. At present,
they are not. It needs to be made explicitly clear, if a general
election results in no one political party attaining a majority,
who governs until a new government can be formed; what role the
monarch plays in determining who the government should be after
an inconclusive election; and, at a more basic level, what the
daily responsibilities of a Minister are, and what resources are
available to him or her. Strangely, there are few if any guidelines
on these matters in the UK.
1.11. Second, actors in the executive branchministers
and officialsneed guidelines on "best practice".
Existing rules are often insufficient or obscure; informal practices
come to supplement or supplant existing rules. Good guidelines
for executive practice should be capable of being beneficial to
any political party (or parties) in government. Governments need
to govern: we argue that updating, revising and consolidating
their practical working guidelines will enable them, not constrain
1.12. Other Westminster jurisdictions have
codified many areas of government practice: the UK lags behind
in this respect. New Zealand provides a useful standard: its Cabinet
Manual (supplemented by two other documents) is a model of
what the other Westminster jurisdictions ought to follow. The
Cabinet Manual provides comprehensive, cohesive and clear
advice on a number of key aspects of executive action. It is publicly
available, and broadly accepted by a wide range of actors in NZ
politics: politicians across the spectrum, officials, academics
and the public. Other countries, while not providing as coherent
and comprehensive guidance as NZ, have also codified key areas
of executive responsibility, and have done so without apparent
cost to government flexibility.
1.13. Finally, there is the democratic argument:
the practices of the executive have for too long been conducted
in secret. Guidelines provide transparency and accountability.
They may help explain to the public how and why decisions are
made at the executive level. Guidance documents on executive practice
are maps for executive actionnot cages. The public will
benefit from publication of these maps, without unduly constraining
the actions of governments which need the flexibility to meet
Scope of the exercise
1.14. What constitutes "key aspects
of executive practice"? Our trawl through ministerial guidance
documents included guidance on:
An outline of the constitution.
The role of the head of state.
Cabinet processes and procedures.
Ministerial responsibilities (individual/collective)
Ministerial relations with the civil
service and arm's-length bodies.
Executive relations with Parliament and
the legislative process.
Elections, transitions and government
Freedom of information.
1.15. For each jurisdiction, a search was
done on key executive websites to determine what guidance documents
were publicly available, using the checklist above. Cabinet Offices
and academics in these jurisdictions were also asked for advice
about the guidance documents. But we acknowledge that there may
be gaps in the material covered; and conversely, that some documents
may have been given more weight than they bear in practice.
2. A COMPARISON
2.1. This section summarises what guidance documents
are available to Ministers in New Zealand, Australia, Canada,
Scotland and the United Kingdom. There is also a set of tables
which follow. These should be treated as rough maps to bring out
some of the differences between the UK and other Westminster jurisdictions.
They differ in terms of coverage; depth and breadth (principled/procedural;
general/detailed); the audience for whom they are intended; the
degree of formality; and their overall coherence. More detail
on each jurisdiction's coverage can be found in the country descriptions
in Appendix 1.
Ministerial Codes and Cabinet Procedures
2.2. All jurisdictions have a document devoted
to formal cabinet processes and procedures. These documents usually
set out in detail matters such as preparing cabinet committee
papers, format, consultation, and rules on confidentiality and
security. All five countries have a ministerial code, which sets
out the rules of ministerial responsibility, ministerial conduct,
conflicts of interest, and so on.
2.3. These two kinds of documents are the
centrepiece of executive guidance (especially the ministerial
code). These guidelines were the first to be codified, and they
relate to the central institutions of executive government.
2.4. The content of these documents is "lore,
not law". They set down working practices, not rigid rules
which must be followed to the letter, or which could be litigated.
They are the instruments of the Prime Minister (or First Minister):
he, or she, is the ultimate arbiter of the content and judge of
any purported breach.
An Outline of the Constitution
2.5. NZ, Australia, and to a lesser extent
Canada also provide an outline of their respective constitutions
in their key ministerial guidance documents. NZ provides the most
comprehensive outline, but it is by no means legalistic.
The Role of the Head of State
2.6. Only NZ offers comprehensive guidance
on this, no doubt as a result of the adoption of proportional
representation in 1996, making government formation a more contentious
and drawn-out matter. Recent events in Canada show the difficult
situations which can arise when there is no clear guidance.
Ministerial Relations with the Civil Service and
2.7. All jurisdictions have codified civil
service values and principles. However, guidance on the relationship
between Ministers and arm's-length bodies (executive agencies,
"quangos", non-departmental public bodies, and so on)
remains, at best, scattered. NZ again has comprehensive advice;
Australia and Canada offer brief guidance. In the UK, the relationships
between Ministers and arm's-length bodies may be too variable
and complex to be dealt with by a broad statement.
Executive Relations with Parliament and the Legislative
2.8. All jurisdictions have guidance on
executive relations with Parliament and the legislative process.
Elections, Transitions and Government Formation
2.9. All countries provide guidance on elections.
But the guidance provided ranges from brief to very detailed.
For instance, only Australia, NZ and Canada
provide detailed information for Ministers about the caretaker
convention. NZ alone appears to provide broader guidance on transitions
("transitions" here referring to a government's loss
of confidence or change of Prime Minister at mid-term) and government
formation. The caretaker convention in NZ can apply mid-term if
the government loses the confidence of Parliament.
Guidance on Administrative Decision-Making and
2.10. All jurisdictions, with the apparent
exception of Scotland, provide guidance on administrative decision-making.
Guidelines on Access to Official Information
2.11. All jurisdictions provide guidance
on access to official information: this is usually an introduction
to freedom of information legislation.
Induction Guide on Ministerial Life
2.12. All jurisdictions, with the exception
of the UK, have a generic guide setting out the practicalities
of ministerial life (e.g. the role of civil servants within a
ministerial office), sometimes written in a formal manner, sometimes
in plain unadorned speech. Some of these are not made publicly
available (Scotland, NZ).
Comprehensiveness, Coherence and Availability
2.13. Two more general observations on executive
guidance documents in Westminster jurisdictions can be made. First,
many but not all guidance documents on executive practice are
now available via the websites of these jurisdictions' executives.
2.14. Second, some jurisdictions offer comprehensive
and coherent guidance; some jurisdictions consolidate guidance
into one location and/or document, while others have guidance
spread over a large number of documents and over various websites.
The NZ Cabinet Office has the most coherent and unified set of
documents relating to executive practice, with its Cabinet Manual
(supplemented by the Cabinet Guide and the Ministerial Office
Handbook) covering more key aspects of executive practice than
any other comparable document or set of documents. These are all
located on a specific website.
2.15. In terms of comprehensiveness, coherence
and accessibility, the guidelines and documents listed on Australia's
Department of the Prime Minister and Cabinet website come in at
a close second. Again, all these documents were found on a specific
2.16. Scotland has a relatively coherent
set of documents, but on a narrow range of topics. However, the
Scottish government website is less straightforward to navigate.
Searches were required to find guidance for the same range of
executive practice guidance as NZ and Australia: documents were
scattered across the websites rather than being drawn conveniently
together on a single webpage.
2.17. Canada is similar to Scotland: what
is offered is relatively comprehensive but its key executive guidance
documents are spread out over a number of different websites and
2.18. Least cohesive and least comprehensive
is the UK. There are a large number of documents, but some very
noticeable gaps. These guidance documents are spread across different
locations; many are directed at civil servants rather than Ministers;
and differ in depth and coverage.
WEBSITES OF WESTMINSTER EXECUTIVES
|Main Executive Website|
2.19. Table 2 below attempts to represent visually what
areas of executive practice are covered by each jurisdiction's
"central guidance document", by which is meant the following:
|NZ||The Cabinet Manual
|Australia||The Cabinet Handbook
|Canada||Accountable Government: A Guide for Ministers and Ministers of State
|Scotland||The Scottish Ministerial Code
|United Kingdom||The Ministerial Code
2.20 Table 3 attempts to show the minimum number of documents
necessary in order for Cabinet and/or Ministers to have a basic
understanding of key aspects of executive practice. In some cases,
what is required as a "minimum" is a fine line to draw:
the UK Ministerial Code does draw attention to the ministerial
relationship with the civil service, but it is comparatively thin,
and would be best bolstered by the Civil Service Code.
Similarly, although there is a description of the roles and powers
of the head of state in the Australian guidance documents listed,
these significantly make no mention of the Governor-General's
role in government formation.
2.21 The Australian Guide on Key Elements of Ministerial
Responsibility is in square brackets to indicate its now defunct
status (discussed further below). Its absence has made executive
guidance in Australia far less comprehensive and more difficult
2.22 As can be seen from Table 4, in the case of New
Zealand, only three "documents" are necessary: the Cabinet
Manual, the Cabinet Guide (in fact a webpage, or set
of webpages) and the Ministerial Office Handbook.
In Australia, the number of basic documents is higher, standing
at around seven to eight documents. The UK has the most number
of documents, standing at eleven at least; but this number should
probably be higher, as there are two additional areas of executive
action which require guidance: the devolution settlements, and
relations with Europe and the European Union.
MINIMUM NECESSARY GUIDANCE FOR CABINET AND MINISTERS BY
NUMBER OF DOCUMENTS
Ministerial Office Handbook
|[A Guide on Key Elements of Ministerial Responsibility]|
Federal Executive Handbook
APS Code of Conduct
Guidance on Caretaker
Freedom of Information 1982:
Fundamental Principles and Procedures
A Guide to Cabinet and Cabinet
Civil Service Code
Directory of Civil Service Guidance, vols 1-2
Executive Agencies: A Guide for Departments;
Public Bodies: A Guide for Departments
The Judge Over Your Shoulder
General Election Guidance 2005
Guide to Parliamentary Business
Guide to Making Legislation
Freedom of Information Guidelines
3. MINISTERIAL GUIDANCE
3.1 The most salient characteristic of the key guidance
documents on executive practice in the UK (see Table 5) is their
fragmented and piecemeal nature. While the majority of the guidance
documents listed can be found on the UK Cabinet Office website
(for more on this, see Appendix 3 below),
these are not gathered together in one place and the location
of some documents is counterintuitive. The second salient characteristic
about the available documents is that the majority are aimed at
civil servants, not Ministers. Finally, the guidance varies in
comprehensiveness and depth: from very detailed to broad and principled.
KEY MINISTERIAL GUIDANCE DOCUMENTS IN THE UK
|Guide to Cabinet and Cabinet Committee Business
|Civil Service Code||2pp
|Directory of Civil Service Guidance, vols 1-2
|Executive Agencies: A Guide for Departments
|Public Bodies: A Guide for Departments
|The Judge Over Your Shoulder||48pp
|General Election Guidance 2005||40pp
|Guide to Parliamentary Business||n/a
|Guide to Making Legislation||n/a
|Freedom of Information Guidelines||28pp
3.2 The Ministerial Code is the central guidance
document for executive practice. Previous versions of the Code
were a mixture of principle and procedure,
but in its current 2007 incarnation, the Code focuses strongly
on the ethical facets of ministerial work. Procedural matters
present in previous versions (such as Cabinet and cabinet committee
business or the publication of Green and White papers) have been
removed. The Code currently sets out a general statement
about the responsibilities of Ministers; Cabinet responsibility;
appointments; ministerial relations with departments; ministerial
relations with civil servants and special advisers; constituency
and party interests; private interests; the presentation of policy;
ministerial relations with Parliament; travel; and the seven principles
of public life. The standard format is to set out a general principle
governing the area in question, and then provide some elaboration.
The Ministerial Code is the creature of the Prime Minister:
revisions to it may be drafted by the Cabinet Secretary, but it
is ultimately the Prime Minister who authorises the Code's
3.3 The Guide to Cabinet and Cabinet Committee Business
provides detailed information on Cabinet procedure. The content
is "informative" rather than procedural and the Guide
itself contains several flowcharts to explain various processes.
3.4 Although there is guidance on the relationship between
Ministers and the civil service (in the form of the Ministerial
Code, the Civil Service Code), guidance on broader
"state sector" relations is weaker to non-existent.
Executive Agencies: A Guide for Departments and Public
Bodies: A Guide for Departments are directed at civil servants
and are more concerned with implementation.
3.5 A number of guidance documents for civil servants
have been gathered together and published in the Directory
of Civil Service Guidance. The Directory consists of
two volumes, one volume setting out briefly where guidance on
various matters is to be found (e.g., copyright or machinery of
government changes); the other being a compilation of already-published
guidance documents. The guidance in the two volumes offered is
useful. However, the Directory itself has not been updated
in some time, the most recent version being published in 2000
under the direction of Sir Richard Wilson (then Cabinet Secretary).
Thus, some of the matters covered in the Directory are
out of datefor instance, the section on freedom of information
notes that the Freedom of Information bill has yet to be enacted.
3.6 Guide to Parliamentary Work is directed towards
officials; the main ministerial guidance on executive-legislative
relations is a short section in the Ministerial Code. The
Guide to Making Legislation is also directed at officials,
setting out the various stages of the legislative process. It
is written simply and is useful and informative.
3.7 The Judge Over Your Shoulder provides detailed
guidance on administrative decision-making and the possibility
of judicial review, but at 48-odd pages this is not a lightweight
document. (Of course most administrative decisions are made not
by Ministers but by civil servants; but Ministers themselves ought
to have a modicum of knowledge about these matters).
3.8 The guidance documents on general elections (General
Elections Guidance 2005 is the most relevant document: there
are others relating to European elections) are directed towards
civil servants and those in agencies and NDPBs. There is no mention
of the caretaker convention. The guidance documents mostly cover
the period up to the election, but not what happens after an election.
There is no discussion of the government formation process, or
the head of state's role in this process.
3.9 Thus, in comparison with the other jurisdictions
surveyed, the UK appears to be lacking in important respects.
Set out below are the main omissions:
Guidance on the role of the head of state
3.10 The most serious omission in available guidance
is the lack of any discussion of the role of head of state, either
in the period leading up to a general election, or more generallyfor
instance, in a situation when the government has lost the confidence
of parliament. The lack of guidance about the role of the Sovereign
in these areas could contribute to media or public misunderstanding
of the political neutrality of the monarchy.
The caretaker convention
3.11 There is very thin guidance on the role of an incumbent
government in the election period (General Election Guidance
2005), and no guidance at all on the role of an incumbent
government where a general election has no clear resulti.e.,
a hung parliament. There is also a question of whether or not
the caretaker convention should apply more broadly to any situation
where it is unclear who has the confidence of Parliament.
Clear guidance on ministerial relationships with departments,
agencies and NDPBs
3.12 The relationship between Ministers, the civil service
and departments is set out both in the Ministerial Code
and the Civil Service Code, although some have argued for
But there is only very thin guidance on the relationship that
Ministers have with more "arm's-length" bodies such
as executive agencies and non-departmental public bodies (NDPBs).
Although there are a variety of relationships between these bodies
and Ministers, a broad statement could be made to clarify the
An outline of the constitution
3.13 NZ, Australia and Canada all have descriptions of
the constitutional framework within which Ministers work. These
descriptions may be brief (Australia, Canada) or they may be more
detailed (NZ). The UK has no equivalent; and a mere consolidation
of its guidance documents could still leave a reader puzzled about
the overall framework.
3.14 There is no general guidance on the UK's relationship
with Europe and the European Union. Given the growing interconnections
between Europe and the UK, this seems an extraordinary omission.
Induction guide on day-to-day ministerial work
3.15 At present it would appear that what is given to
a new ministerial incumbent depends very much on the department
he or she works in; otherwise Gerald Kaufman's How to be a
Minister (1980) remains a DIY guide.
3.16 Finally there is no "narrative" which
draws all this information togetherthis might be
provided by a discussion of the constitution. There is also a
question of audience: to whom is this executive guidance addressed?
At present it would appear that most of it is directed at civil
servants rather than ministers.
3.17 To end on a more positive note, the guidance on
devolution under Ministers and Government Business is good: it
is clear, succinct and covers the main points and principles of
the devolution settlements. While it is located too many links
away from the central website (see Appendix 3), this section is
a model of how usefully to provide information on a difficult
4. CODIFYING THE
4.1 The most glaring deficiencies in the UK guidance
are the absence of any explanation of the process of government
formation; and the brief and inadequate explanation of the caretaker
convention, to be found in the UK's General Election Guidance
During an election campaign, the Government retains its responsibility
to govern, and Ministers remain in charge of their Departments.
Essential business must be carried on. However, it is customary
for Ministers to observe discretion in initiating any new action
of a continuing or long-term character. Decisions on matters of
policy on which a new Government might be expected to want the
opportunity to take a different view from the present Government
should be postponed until after the Election, provided that such
postponement would not be detrimental to the national interest
or wasteful of public money.
4.2 By contrast New Zealand has a detailed and carefully
articulated account of both conventions, in chapter 6 of the Cabinet
Manual, entitled Elections, Transitions and Government Formation.
Since the introduction of MMP in 1996, they have thought through
the application of these principles and recorded them in growing
detail. The Manual sets
out the rules on government formation after an election; government
formation mid-term; early dissolution of parliament; and the operation
of the caretaker convention before and after an election, and
mid-term. The key sections of the Manual are in Appendix 2, with
the essentials summarised below.
4.3 Government formation
The process of forming a government is political,
and the decision to form a government must be arrived at by politicians.
Once the political parties have reached an accommodation,
and a government is able to be formed, the parties will make public
statements of their intentions.
It is not the Governor-General's role to form the
government or to participate in any negotiations.
The Governor-General will abide by the outcome of
the political parties' negotiations, and accept the political
decision as to who can command the confidence of parliament.
4.4 Mid-term transitions
If the government loses the confidence of the House during
its parliamentary term:
the Prime Minister will advise that the administration
will resign; and
a new administration may be appointed from the existing
Parliament (if an administration that has the confidence of the
House is available);
or an election may be called; and
in the interim, the incumbent government continues
in office, governing in accordance with the caretaker convention.
4.5 Early election
The Governor General will grant a request for an early
election, as long as the government appears to have the confidence
of the House and the Prime Minister maintains support as the leader
of that government.
A Prime Minister whose government does not have the
confidence of the House would be bound by the caretaker convention.
A caretaker Prime Minister must consult other parties on an early
4.6 Caretaker convention
The caretaker convention applies after an election,
until a new government is sworn in; and mid term, if a government
loses the confidence of Parliament.
The incumbent government is still the lawful executive
authority, with all the powers and responsibilities that go with
executive office. It is likely to state that it is operating as
a caretaker government.
If decisions are required on significant or controversial
issues, such decisions should: be deferred, if possible; handled
by a temporary arrangement (eg extending a board appointment,
or rolling over a contract for a short period); or made only after
consultation with other political parties.
Such decisions will be referred to the Minister, who
must consult the Prime Minister in cases of doubt, or before approaching
other political parties.
4.7 Not all the detail of the New Zealand rules is necessarily
transferable to the UK, but the underlying principles are the
same. The key points are that the process of forming a government
is political, and the decision to form a government must be arrived
at by politicians. It is not the Monarch's role to form a government,
or to facilitate negotiations. The Monarch may occasionally wish
to seek advice from experts, but her prime source of advice must
be her responsible Ministers, who will inform her who can command
the confidence of Parliament.
4.8 New Zealand has developed the rules in one respect
where the UK might wish to follow. This is to provide that the
caretaker convention should apply not just during and after an
election, but also mid term, if the government has lost the confidence
of the House. The Prime Minister continues to be the Queen's principal
constitutional adviser, but the caretaker convention would help
to ensure that he is doubly careful that his advice will command
support across the House. Significant decisions will require consultation
with other political parties, to establish whether the proposed
action has the support of the majority of the House.
4.9 In New Zealand, the Cabinet Manual makes clear that
governments are not bound by the caretaker convention in the period
immediately before the election. However, it notes that "Successive
governments... have chosen to restrict their actions to some extent
at this time, in recognition of the fact that an election, and
therefore potentially a change of government, is imminent. For
example, significant appointments have been deferred, and some
otherwise unexecptionable government advertising has been considered
inappropriate during the election campaign, due to the heightened
risk of perception that public funds are being used to finance
publicity for party political purposes."
5. DRAFTING A
5.1 There are a number of considerations to keep in mind:
5.2 The target audience. Key executive documents are
intended first and foremost for Ministersthe Prime Minister
and his colleagues. Any draft Cabinet Manual must be acceptable
to those in office, or those who could potentially take office.
There is no point in drafting guidance which does not meet their
5.3 The tone and language. The Manual may be drafted
in a formal style but should not be legalistic. The New Zealand
Manual provides a good example (see Appendix 2). The language
is simple and informative: it is principle rather than rule based.
Each chapter begins with an introduction and general principles,
before going into practical details.
5.4 The need for flexibility. The manual provides a guide
to how the centre of government works, not a restrictive set of
rules. It needs to be drafted throughout to ensure sufficient
flexibility for the government of the day.
5.5 The need for consultation. To be useful to successive
governments, the Manual needs to command legitimacy outside as
well as inside Whitehall. It needs to be shown in draft to the
leaders of the main opposition parties, and possibly laid for
approval before Parliament, though this does not happen in New
5.6 The Manual needs periodically to be revised. In NZ,
this occurs every five to six years, which is roughly two parliamentary
terms. Any revisions undergo a similar process to the initial
drafting procedure, involving consultation with relevant actors,
although ultimately it is the Prime Minister who approves the
changes. It is also expected that there may be some minor revisions
during a change of governmentfor instance, in order to
recognise unusual governing arrangements (e.g., the changes made
to the NZ Cabinet Manual sections on collective responsibility
in 2001, recognising a coalition partner's right to "agree
5.7 This consultative process may help in promoting a
sense of ownership in the draft manual, which ideally describes
accurately in writing the practices of those consulted. Opposition
parties may also need to be consulted, although this is at the
discretion of the Cabinet Office and the Prime Minister. Academics
may be consulted about proposed changes privately, as in NZ.
5.8 It is also worth noting the point made by former
PM Helen Clark in the foreword to the Cabinet Manual the "the
Cabinet Manual does not effect change, but, rather, records incremental
changes in the administrative and constitutional arrangements
of executive government..."
5.9 The manual should be made publicly available: it
is a record of the internal working practices of the executive.
This is something that the public ought to know about and have
KEY GUIDANCE DOCUMENTS IN NEW ZEALAND, AUSTRALIA, CANADA
Key Guidance Documents for Executive Practice in New
The Cabinet Manual
|The Cabinet Guide||n/a
|The Ministerial Office Handbook||226pp
||Not publicly available. It can be obtained from the NZ Ministry of Internal Affairs, Ministerial Services Section.
All the major guidance documents are found on the NZ Cabinet
Office website. Guidance
for the NZ public service is on the State Services Commission
The centrepiece of guidelines to executive practice in NZ
is the Cabinet Manual. At 180 pages of large print (although
only about 140 pages have substantive content), it provides cohesive
and comprehensive guidance on a wide range of executive activities.
It has been described by the current Secretary of the NZ Cabinet
Office as "the executive's own internal practical working
It has been publicly available since 1996.
The Cabinet Manual, beginning with a note outlining
the basics of the NZ constitution, consists of eight chapters.
These cover the Head of State; a broad discussion of Ministerial
duties and powers; ministerial relationships with the state sector;
Ministers and the law; Cabinet decision-making; elections, transitions
and government formation; legislation and parliamentary relations;
and official information.
There are a number of matters to note about the Cabinet
Manual. First, the Manual is not simply a code of ethical
conduct: it gives guidance on a very broad range of matters. Second,
the format is principled and procedure-heavy rather than being
rule-based. There is also a coherence about the guidance: each
aspect is dealt with in roughly the same depth and tone. Third,
key players in NZ politics adhere to the Cabinet Manual.
One of the first actions of a new administration is an affirmation
of the Manual: the "leading" political party
and those parties with executive responsibilities
agree to be bound by the provisions of the Manual.
Fourth, the Manual has a broad audience: the Head of State,
those in the executive, and officials. Finally, while the Manual
offers coherent and comprehensive advice on executive practices,
those who make use of it insist that it is not a legal document:
its authority derives from Cabinet. It is descriptive, not normative.
It is hard to put across the depth and quality of the Cabinet
Manual's coverage of issues: simply listing the contents does
not do it justice. Three examples may illustrate this. The first
example is the six-page description of the NZ constitution, written
by Sir Kenneth Keith, then President of the NZ Law Commission
and later Supreme Court judge. It is elegant and succinct, covering
all key matterssources, amendment, key principles and responsibilities
of key actors. The second example is the chapter on elections,
transitions and government formation, which includes in detail
the principles covering elections (including the caretaker convention),
mid-term transitions (for instance, where there is a change of
Prime Minister) and dissolutions, and government formation. The
third example is the chapter on Ministers and the public sector,
which sets out not just the relationship between Ministers and
officials, but also between Ministers and different kinds of arm's-length
There may be contingent reasons for this depthfor
instance, the comprehensive guidance on ministerial relationships
with the public sector may stem from the strong commitment NZ
governments have had for the new public management, which stresses
clear, transparent relations between "principal" and
"agent". Similarly, the chapter on elections and transitions
is the distillation of various experiences faced under proportional
The Cabinet Manual is supplemented by relevant updates
("Cabinet Office circulars"), which are set out in the
same format and published on the Cabinet Office webpage. These
circulars include matters such as guidance on administrative arrangements
for multiparty governance, and outlines of the annual legislative
programme. Some circulars are incorporated into later editions
of the Manual. The Cabinet Manual is updated every
five to six years by the Cabinet Office: proposed revisions may
be discussed with relevant parties (for instance, the chapter
on legislation is sent to the Clerk of the Parliament; the chapter
on Official Information is sent to the Ombudsman and the Privacy
Commissioner), although ultimately it is the Prime Minister who
approves the changes.
The Cabinet Guide is in fact a website devoted to
the detail of Cabinet and Cabinet committee procedures. Originally
part of the Cabinet Manual, it was removed in 2001 and
placed online partly to maintain the Cabinet Manual's "principled"
The Ministerial Office Handbook provides comprehensive
guidance to Ministers and Ministerial staff on administrative
and support services. The Handbook is not publicly available,
although it can be obtained (if necessary) under an Official Information
request. It is composed and revised by the Ministerial Services
section of the Ministry of Internal Affairs. The Handbook covers
such matters as ministerial offices and staff; finances and expenditure;
support services; training topics; IT; transport (domestic and
overseas); correspondence; protocol; security; and ministerial
Key Guidance Documents for Executive Practice in Australia
|[Guide on Key Elements of Ministerial Responsibility]
|Standards of Ministerial Ethics||9pp
|Federal Executive Council Handbook||45pp
|APS Code of Conduct||n/a
|Guidance on Caretaker Conventions||12pp
|Freedom of Information Act 1982: Fundamental Principles and Procedures
|Foundations of Governance in the Australian Public Service
All the major guidance documents are found on the Australian
Department of the Prime Minister and Cabinet website (under "Guidelines
In terms of comprehensiveness, the "downgrading" of
one key guidance document, the Guide on Key Elements of Ministerial
Responsibility, may have reduced coverage. The only major
flaw is the lack of official guidance on the role of the Crown
Currently, the key guidance document is the Cabinet Handbook,
which sets out in detail Cabinet principles and procedures: the
organisation of Cabinet; Cabinet conventions and principles; the
Cabinet program and business; consultation; appointments; security;
and in an annex a brief note on the caretaker convention. Curiously,
there is no mention of the role and function of the Governor-General.
The Handbook is formal in stylelegalistic and with
numbered paragraphs. It is heavily procedural in nature. This
was first published by the government in 1983.
The Federal Executive Council Handbook (equivalent to the
Privy Council) is the Federal Executive Council's equivalent of
the Cabinet Handbook.
Previously, the Cabinet Handbook was supplemented
by the Guide on Key Elements of Ministerial Responsibility
("Key Elements"). Key Elements was intended
as a source of quick reference for ministers and staff, setting
out in 35 pages key aspects of executive practice. No longer available
on the DPMC website, it set out in summary form the basic principles
and procedures for government at the Commonwealth (federal) level,
each aspect dealt with in 1-3 pages. Key Elements covered
the Australian constitutional and legal framework; ministries;
Cabinet; the Executive Council; ministerial conduct; Ministers'
relationships with departments; administrative decision-making;
ministerial facilities and services; parliamentary business; correspondence
and travel. The language was plain; the style was informal and
informative rather than legalistic. Originally issued by then
Prime Minister John Howard, it has apparently fallen into disuse,
perhaps because of the change in administrationsalthough
chapter five of the guide has been updated and published as a
separate document, Standards of Ministerial Ethics. Its
absence means that there is no general introduction to executive
government in Australia. There are some suggestions that the entire
Key Guide is being updated.
The Australian Public Service Code of Conduct also
comes with a guide, the APS Values and Code of Conduct In Practice:
A guide to official conduct for APS employees and agency heads,
which sets out the practical application of the Code.
Guidelines on Caretaker Conventions provides comprehensive
guidance on the caretaker conventionnoticeably, it is only
seen to apply to government action during the election period,
and not in periods where it is unclear where the confidence of
Parliament lies. Moreover, there is no mention of the role and
function of the Governor-General under either situation.
Finally, attention should be drawn to the excellent Foundations
of Governance: this provides comprehensive guidance for agency
heads (the functional equivalent of permanent secretaries) to
help them meet their obligations and responsibilities. It is the
Australian Public Service ("APS") equivalent of Key
Elements, and is published by the Australian Public Services
Commission, the body responsible for the APS. Foundations
covers such matters as agency head relationships with Ministers;
the Australian Constitution; delegation; APS values and code of
conduct; whistleblowing; various legal obligations (e.g., anti-discrimination
law); financial management and budgets; employment matters; government
information; administrative decision-making; criminal liability;
security; native land title and environmental issues. Much of
the information provided is drafted by various federal agencies
and consolidated by the Public Services Commission.
Key Guidance Documents for Executive Practice in Canada
|Accountable Government: A Guide for Ministers and Ministers of State
|Guide to Making Federal Acts and Regulations
|Values and Ethics Code for the Public Service
|Access to Information GuidelinesGeneral
|Policies and Guidelines for Ministers' Offices
|Guidance for Deputy Ministers||n/a
|Guidebook for Heads of Agencies||n/a
The key guidance documents for the Canadian executive are
not easily located. Many of them can be found on the Privy Council
Office (the Canadian equivalent of the Cabinet Office) homepage,
but this requires some navigation.
For instance, the key guidance document for executive practice,
Accountable Government, is found under the rubric "PCO
Secretariats/machinery of government secretariat". But in
fact, many documents are provided to new Ministers in an ad hoc
manner in briefings by senior officials (for instance, information
on conventions, relevant legislation and responsibilities).
The centrepiece of guidance on executive practice in Canada
is Accountable Government: A Guide for Ministers and Ministers
of the State. An 84 page document, it sets out in relatively
formal prose the business of being a minister. It covers ministerial
responsibility, portfolio responsibilities, standards of conduct,
relations with Parliament, and consultation and coordination.
In annexes are also set out, amongst other matters, a summary
of Canada's constitutional arrangements (which includes a thin
outline of the head of state's role) and the broad principles
and procedures of Cabinet. It is produced by the Machinery of
Government secretariat in the Privy Council Office.
The general approach of Accountable Government is
much like the Australian Guide to Key Elements of Responsibility:
it is a summary of principles, with detailed guidance found elsewherefor
instance, the annex on Cabinet process is only five pages. Thus
while Accountable Government does cover a wide range of
areas of executive action, detail is often thin. Having said that,
Accountable Government's coverage is very broad: it is
an invaluable introduction to the work of the Canadian executive.
The Guide to Making Federal Acts and Regulations consists
of the 1999 Cabinet Directive on Law-Making and then more
detailed guidance on the legislative process. The Directive
is the foundation document, setting out the objectives and expectations
of Cabinet in passing legislation; the remainder of the Guide
sets out the processes and procedures by which legislation (and
regulations) is developed and enacted. The Guide is directed
mostly at officials.
The senior public service equivalent of Accountable Government
is the Guidance for Deputy Ministers. "Deputy Ministers"
are the Canadian equivalent of permanent secretaries. Guidance
for Deputy Ministers sets out in detail the responsibilities
and accountabilities of Deputy Ministers: supporting Ministers;
management of the Department; portfolio management; supporting
Ministers in Parliament; responsibilities to parliamentary bodies;
and accountabilities to the Prime Minister, Minister, the Clerk
of the Privy Council, the Treasury Board and the Public Services
Board. Guidance for Deputy Ministers while more comprehensive
than Accountable Government (as it only deals with one
kind of actor) is also principle-based rather than legalistic
and detailed. There is also a Guidebook for Heads of Agencies,
of a similar quality.
Some guidelines are found on the Treasury Board of Canada
website, the Treasury Board being the body in charge of the federal
public service. Guidelines to be found there include the Values
and Ethics Code for the Public Service (the Canadian equivalent
of the Civil Service Code) and the Access to Information
Guidelines (on freedom of information).
The executive guidance documents on elections in Canada are
not publicly available, although they do exist. Similarly, the
Governor-General (Canada's head of state) is given an extensive
briefing on his or her role, but this is also not publicly available.
There is a very limited discussion of the role of the Governor-General
in Accountable Government, but no real substance.
Policies and Guidelines for Ministers' Offices provides
extensive information on administrative matters for Ministers,
including topics like conflicts of interest, security, human resources,
pay, benefits, leave, funding, travel, and the official language
Key Guidance Documents for Executive Practice in Scotland
|Key Information for Ministers||51pp
||Not publicly available|
|Guide to Collective Decision-making||21pp
|Civil Service Code||2pp
|Freedom of Information Overview||13pp
|UK General Election and by-election campaigns: Guidance to Scottish Government civil servants
|Scottish Parliament Election Guidance 2007
|Handling EU Obligations||55pp
The key guidance documents on executive practice in Scotland
are relatively easy to locate on the Scottish government website.
Finding more specific guidance (such as information on elections
or EU obligations), however, requires a wider search. In terms
of comprehensiveness, the Scottish government has slightly more
coverage than the UK, but apparently lacks guidance on administrative
decision-making; government formation; and the caretaker convention.
The centrepiece of guidance on executive matters is the Scottish
Ministerial Code. It is very much like the UK Ministerial
Code, although there is more detail. It covers basic Cabinet
procedure; legislation and parliamentary relations; ministerial
duties and responsibilities; appointments; ministers and civil
servants; constituency and party interests; planning matters;
ministerial visits; the presentation of policy; ministerial private
interests; and pensions. The First Minister is the ultimate arbiter
in determining whether there has been a breach of the Code,
and what consequences follow. As with the UK Ministerial Code,
the focus is on propriety rather than "best (executive) practice".
The Guide to Collective Decision Making is a detailed
document given over to Cabinet procedure and processes.
The Ministerial Code and Guide to Collective Decision-Making
is supplemented by Key Information for Ministers, a "rough
guide" to ministerial life. Key Information sets out
in frank, informal English the practicalities of ministerial lifewhat
a minister's private and diary secretary does, claiming allowances,
the key executive bodies and so forth. There is little discussion
of principle or convention, although there is a brief section
devoted to the civil service code. There is also a section outlining
the budget of the Scottish government. Key Information
was a compilation of material prepared ahead of the 2007 Scottish
election and was not published at the time. The Scottish Government
is currently reviewing the material provided to new Ministers.
Key Information is an excellent document, which might be
used as a model for other government developing guidance for new
These three documents are key: the other documents listed
in the table above are what is available on the Scottish government
website and cover key areas of executive practice (e.g. EU
obligations and Freedom of Information overview). The Scottish
Civil Service Code is virtually the same as the UK version;
except that it has been amended to state Scottish civil servants
owe their loyalty to the Scottish government.
The guidance documents on elections are directed towards
civil servants and those in agencies and NDPBs: these follow very
closely the election guidance given by the UK Cabinet Office in
relation to general elections. There is no mention of the caretaker
convention. The guidance documents mostly cover the period up
to the election, but not what happens after an election. The guidance
document on Scottish elections notes (in the same language used
in UK CO guidance on general elections) that Ministers are expected
to defer, or at least exercise discretion about policy of a long-term
character during the election, but there is no discussion of what
happens in an extended period of government formation. This is
odd, given that proportional representation makes government formation
in Scotland much more prolonged, typically requiring a couple
of weeks after the election.
EXTRACTS FROM THE NEW ZEALAND CABINET MANUAL
6.16 On occasion, it may be necessary for a government
to remain in office for some period, on an interim basis, when
it has lost the confidence of the House, or (after an election)
until a government is sworn in following the government formation
process. During such periods, the incumbent government is still
the lawful executive authority, with all the powers and responsibilities
that go with executive office. However, governments in this situation
have traditionally constrained their actions until the political
situation is resolved, in accordance with what is known as the
convention on caretaker government.
6.17 There are two circumstances in which the government
would see itself bound by the caretaker convention:
(a) After a general election, one of the two arms of the caretaker
convention applies until a new administration is sworn in. (See
(b) If the government has clearly lost the confidence of the
House, the caretaker convention guides the government's actions
until a new administration takes office, following either negotiations
between the parties represented in the current Parliament or a
6.18 In both situations the government is likely to state
explicitly that it is to operate as a caretaker government until
the political situation is resolved.
Principles of the caretaker convention
Two arms of the convention
6.19 There are two arms to the caretaker convention:
(a) where it is not clear who will form the next government
(see paragraphs 6.20-6.23);
(b) where it is clear who will form the next government, but
they have not yet taken office (see paragraphs 6.24-6.25).
The principles that apply in each situation are set out below.
6.20 Where it is not clear which party or parties will
form the next government following a general election or mid-term
loss of confidence in the government, the following principles
apply to government business (at every level).
(a) In general terms, the normal business of government and
the day-to-day administration of departments and other agencies
in the state sector may continue during the caretaker period.
(b) Decisions taken and specific policy determined before
the start of the caretaker period may be implemented by a caretaker
government (subject to paragraph 6.21).
(c) Matters may arise, however, that would usually require
decisions, such as those concerning:
significant or potentially controversial issues;
issues with long-term implications that would be likely
to limit the freedom of action of an incoming government (such
as signing a major contract or making a significant appointment);
new policy initiatives; and
changes to existing policy.
(d) Decisions relating to those matters should:
be deferred, if possible, until the political situation
is resolved; or
if deferral is not possible (or is no longer possible),
be handled by way of temporary or holding arrangements that do
not commit the government in the longer term (for example, by
extending a board appointment or by rolling over a contract for
a short period); or
if neither deferral nor temporary arrangements are
possible, be made only after consultation with other political
parties, to establish whether the proposed action has the support
of a majority of the House. The level of consultation might vary
according to such factors as the complexity, urgency, and confidentiality
of the issue. (See also paragraph 6.32.)
6.21 Occasionally a significant policy decision that
was made before a caretaker period will need to be implemented
during the caretaker period. Usually the implementation of such
decisions can proceed during a caretaker period. If the proposed
action would be difficult or impossible to reverse, however, it
may be appropriate to consult with other political parties about
6.22 The caretaker convention colours the whole conduct
of government, and requires careful judgement by Ministers, public
servants, Crown entities, and other state sector agencies as to
whether particular decisions are affected.
6.23 No hard and fast rules are possible. Ministers may
need to take into account various considerations (including political
considerations), both on whether it is appropriate or necessary
to proceed on a matter and on how the matter should be handled.
Decisions will also be considered against the background that
the incumbent caretaker government has lawful executive authority,
until replaced or confirmed in office.
6.24 Where it is clear which party or parties will form
the next government but Ministers have not yet been sworn in,
the outgoing government should:
(a) undertake no new policy initiatives; and
(b) act on the advice of the incoming government on any matter
of such constitutional, economic or other significance that it
cannot be delayed until the new government formally takes officeeven
if the outgoing government disagrees with the course of action
6.25 Situations of this kind are likely to be relatively
short-lived, as the Constitution Act 1986 enables a swift transition
between administrations once the composition of the new government
has been confirmed.
Decision-making process under the caretaker convention
Departments and other state sector agencies
6.26 The day-to-day administration of departments and
agencies in the wider state sector will (in general terms) continue
during the caretaker period. However, departmental officials and
board members and employees of other state sector agencies should
always take into account the fact that they are operating in a
caretaker environment, and exercise special care when making decisions
during this time.
6.27 Most decisions to which the caretaker convention
applies are those relating to significant or potentially controversial
issues, issues with long-term implications, new policy initiatives,
or changes to existing policy. In the usual course of events,
these decisions will be referred to the Minister. The Minister
will decide (in consultation, if appropriate, with ministerial
colleagues and/or the Prime Minister) how the convention applies
and how the decision should be handled. The department should
be ready to provide advice (if required) on applying the caretaker
convention, and the options for handling the decision in terms
of the convention. The Secretary of the Cabinet is available for
6.28 On rare occasions, caretaker convention issues may
arise in relation to matters that, under statute, fall solely
within the decision-making authority of a chief executive or statutory
officer. Where appropriate, chief executives and statutory officers
should observe the principles of the caretaker convention (see
paragraphs 6.19-6.25) when making those decisions. The Secretary
of the Cabinet is available for guidance.
Crown entities, state-owned enterprises, and other state sector
6.29 The statutory provisions governing decision making
within Crown entities, state-owned enterprises, and other state
sector agencies impose different obligations from those applicable
to decision making within departments. Cabinet expects, however,
that agencies in the state sector will apply the principles of
the caretaker convention (see paragraphs 6.19-6.25) to decision
making during the caretaker period, as far as is possible (taking
into account their legal obligations and statutory functions and
duties). Cabinet also expects that the agencies will discuss with
their Ministers any issues that have caretaker convention implications.
For general guidance on applying the caretaker convention, the
heads of Crown entities or other state sector agencies may wish
to contact relevant departmental chief executives or the Secretary
of the Cabinet.
6.30 As a general rule, Ministers should put before their
colleagues the sorts of issues on which they themselves would
wish to be consulted. (See paragraphs 5.11-5.12.) Ministers may
wish to discuss with their Cabinet colleagues whether the caretaker
convention applies to a particular decision and how it should
be handled. If Ministers are in any doubt about whether the caretaker
convention applies to a particular matter, they should err on
the side of caution and raise the matter with the Prime Minister
or at Cabinet. If a Minister considers that a matter requires
consultation with other political parties, the proposed consultation
must be approved in advance by either Cabinet or the Prime Minister.
(See paragraphs 6.31-6.32.)
Coordination and the Prime Minister's role
6.31 In cases where any doubt arises as to the application
of the caretaker convention, Ministers should consult the Prime
Minister. Final decisions concerning the caretaker convention
rest with the Prime Minister.
6.32 All approaches to other political parties must be
cleared in advance with the Prime Minister or Cabinet. Ministers
should ensure that they notify the office of the Prime Minister
as early as possible of all matters that may require consultation
and action during periods of caretaker government.
Guidance on decisions about expenditure and the Official Information
6.33 During a caretaker period, particular attention
should be paid to decisions about expenditure, and requests under
the Official Information Act 1982.
6.34 In relation to decisions on expenditure, there must
always be authority from Parliament to spend money before expenditure
is incurred. (See paragraph 5.65.)
6.35 The Official Information Act 1982 continues to operate
during a caretaker period. In general, responding to requests
for information should be seen as part of the day-to-day business
of government, and should be dealt with in the usual way. On rare
occasions, requests may raise issues that are likely to be of
long-term significance for the operation of government and that
require ministerial involvement. In this situation, it may be
necessary to consider extending the time limit in order to consult
with the incoming Minister. Any such extension must comply with
section 15A of the Official Information Act 1982. For more information
on the Official Information Act 1982, see paragraphs 8.13-8.51.
6.36 The process of government formation occurs most
commonly following an election, but may be necessary if the government
loses the confidence of the House mid-term. The principles and
processes set out in paragraphs 6.37-6.42 apply in both post-election
and mid-term government formation situations.
Principles and processes of government formation
6.37 The process of forming a government is political,
and the decision to form a government must be arrived at by politicians.
6.38 Once the political parties have reached an adequate
accommodation, and a government is able to be formed, it is expected
that the parties will make appropriate public statements of their
intentions. Any agreement reached by the parties during their
negotiations may need to be confirmed subsequently by the political
parties involved, each following its own internal procedures.
6.39 By convention, the role of the Governor-General
in the government formation process is to ascertain where the
confidence of the House lies, based on the parties' public statements,
so that a government can be appointed. It is not the Governor-General's
role to form the government or to participate in any negotiations
(although the Governor-General might wish to talk to party leaders
if the talks were to have no clear outcome).
6.40 Accordingly, the Governor-General will, by convention,
abide by the outcome of the government formation process in appointing
a government. The Governor-General will also accept the political
decision as to which individual will lead the government as Prime
6.41 During the government formation process, the Clerk
of the Executive Council provides official, impartial support
directly to the Governor-General, including liaising with party
leaders as required on behalf of the Governor-General. The Clerk
facilitates the transition between administrations if there is
a change of government. The Clerk assists the outgoing and incoming
Prime Ministers and provides constitutional advice, as appropriate,
on any proposed government arrangements. See paragraphs 1.30-1.34
for further information about the role of the Clerk of the Executive
6.42 Parliament must meet not later than six weeks after
the date fixed for the return of the writs for a general election
(see section 19 of the Constitution Act 1986), although it may
be summoned to meet earlier. If, following an election, a government
has not yet been formed by the time that Parliament meets, the
Address in Reply debate may resolve matters as it provides an
early opportunity for a confidence vote. If Parliament is in session
following a mid-term government formation process, a vote of confidence
may also usefully be initiated to demonstrate where the confidence
of the House lies.
6.43 Where a government formation process results in
a change of administration, Ministers usually remain in office
in a caretaker capacity until the new government is sworn in,
at which time the outgoing Prime Minister will advise the Governor-General
to accept the resignations of the entire ministry.
6.44 Section 6(2)(b) of the Constitution Act 1986 may
require some Ministers in the caretaker government to resign before
the government formation process has concluded, following a general
election. Section 6(2)(b) requires any Minister who has not been
re-elected to Parliament to resign from the Executive within 28
days of ceasing to be a member of Parliament. In this event, the
Prime Minister may ask another Minister in the caretaker government
to be acting Minister in the relevant portfolio(s), or may appoint
a new Minister to the portfolio(s) (in a caretaker capacity).
6.45 Ministerial Services provides practical assistance
to outgoing Ministers in relation to staff, office, and other
practical arrangements. The Cabinet Office and Archives New Zealand
provide guidance on the storage and disposal of Ministers' official
papers. (See paragraphs 8.86-8.99.) The Cabinet Office also seeks
information from outgoing Ministers about gifts they have received
while in office. (See paragraphs 2.78-2.85.)
Appointment of a new government
6.46 Since the introduction of New Zealand's proportional
representation electoral system, it has been the practice for
a full appointment ceremony to be held when a government is formed
after an election, even when the composition of the government
has not greatly changed. The ceremony formally marks the formation
and commencement of the new administration and marks the end of
the caretaker period.
6.47 Section 6(2)(a) of the Constitution Act 1986 enables
a swift transition between administrations. It provides that any
candidate at a general election can be appointed as a Minister,
before being confirmed as elected, so long as that Minister is
confirmed as a member of Parliament within 40 days of being appointed
to the Executive. Section 6(2)(a) does not apply to Parliamentary
Under-Secretaries, who cannot be sworn in until their election
as members of Parliament has been confirmed.
6.48 Further information on the appointment of Executive
Councillors and Ministers is set out in paragraphs 1.23-1.24,
and paragraphs 2.15-2.17.
UK CABINET OFFICE WEBSITE
The website is not easy to navigate. A reader wanting to
understand what are the practical working guidelines the executive
follows in exercising government power would be hard-pressed to
find the basic documents.
Location/organisation: material is somewhat haphazardly organised.
Material related to "Ministerial and Government business"
is located in a column on the left hand side of the title webpage
(three-quarters of the way down). The Ministerial Code
and Civil Service Code are found under "Codes of Conduct",
and not under "Ministerial and government business"which
would seem to be the key area for ministerial guidance. Guidance
on freedom of information is found under "publications",
a link located at the top of the CO's title webpage. Some information
is not even found on the CO website: the rules for judicial review
are found on the Treasury Solicitor's Department website (The
Judge over Your Shoulder); some information about governance
of state bodies is found through a link under "propriety
and ethics" on the CO page which links to the civil service
webpage on guidance on public bodies (this guidance is directed
more at civil servants).
Format: there is inconsistency about formatfor instance,
the guide to parliamentary business is in HTML (web) format only;
the Ministerial code is in PDF format; the topics under Cabinet
business are a mixture of HTML, word and PDF formats; some links
to documents lead to external websites.
On the face of it, the structure of the ministerial and government
business webpage is quite logical; but coverage is limited. As
noted earlier, some guidance is not even available on the CO website
itself (e.g., guidance on administrative decision-making). Sometimes
the coverage is rather haphazard (e.g., "consultation"
only covers the release of statistics; the webpage on the European
secretariat only sets out what the secretariat does, but says
nothing about the relationship between the UK and Europe).
There are gaps in key areas (at least publicly)see
Some links are dead.
Again, there is no "narrative" drawing all these
matters together. There is surely an argument that a more coherently
organised website and/or guidance would be beneficial to the public
too. Just to take a topical example, clear guidance posted on
what happens during a hung parliament or during government formation
might calm an excitable media and nervous financial sector.
See "Making Minority Government Work: Hung parliaments and
the challenges for Westminster and Whitehall", December 2009,
edited by Robert Hazell and Akash Paun, published by the Constitution
Unit and the Institute for Government; and "Transitions:
Preparing for Changes of Government", October 2009, by Peter
Riddell and Catherine Haddon, published by the Institute for Government. Back
Our understanding is that Canada does provide written guidance
on the caretaker convention in the election period. This may be
published shortly following an FOI request. Back
There are also two important documents issued by the State Services
Commissioner that provide additional guidance around elections
and government formation. These are primarily for the public service
but also for political parties and ministers to be aware of. These
publications can be found at: http://www.ssc.govt.nz/display/document.asp?NavID=114DocID=6694
and http://www.ssc.govt.nz/display/document.asp?NavID=114DocID=6835 Back
On earlier versions of the Ministerial Code (previously
Questions of Procedure for Ministers), see Amy Baker Prime
Ministers and the Rule Book (Politico's Publishing, London,
Better Government Initiative, Good Government: Reforming Parliament
and the Executive, available at: http://www.bettergovernmentinitiative.co.uk/sitedata/Misc/Good-government-17-October.pdf. Back
For the evolution of the Manual, see McLeay E, "What is the
Constitutional Status of the Cabinet Office Manual?" Public
Law Review 1999 March 1999 at 9-17; and Kitteridge R, "The
Cabinet Manual: Evolution with Time" paper to 8th Annual
Public Law Forum, 20-21 March 2006. Back
New Zealand Cabinet Manual, para. 6.9. Back
New Zealand Cabinet Office: http://www.dpmc.govt.nz/Cabinet/index.htm. Back
New Zealand State Services Commission: http://www.ssc.govt.nz/display/home.asp. Back
Rebecca Kitteridge "The Cabinet Manual: Evolution with Time"
(8th Annual Public Law Forum, 2006), available at: http://www.dpmc.govt.nz/cabinet/reports-and-speeches/pdf/the-cabinet-manual-evolution-with-time.pdf. Back
Since the adoption of MMP, NZ governments are usually multiparty
See, for instance, the National-Maori Party confidence and supply
agreement, where the Maori Party specifies that those of its members
with ministerial roles will adhere to the provisions of the Cabinet
Manual with respect to their ministerial conduct: http://www.national.org.nz/files/agreements/National-Maori_Party_agreement.pdf. Back
The one matter which NZ is lacking is a code for special advisers,
but this is currently being drafted by the State Services Commission. Back
For a history of the Australian Cabinet Handbook, see Patrick
Weller Cabinet Government in Australia, 1901-06 (UNSW Press,
Sydney, 2007). Back
See Foundations of Governance in the Australian Public Service
(2009), which still lists Key Elements as an important
reference document, and states that Key Elements is "being
revised" at p26; and Standards of Ministerial Ethics,
which states Key Elements will soon be "revised and
PCO website: http://www.pco-bcp.gc.ca/index.asp?lang=eng&Page=index. Back
The Scottish government website: http://www.scotland.gov.uk/Home.
Some of the main guidance documents are found under "About/Cabinet
and Ministers". Back
The full manual is at: http://www.cabinetmanual.cabinetoffice.govt.nz/files/manual.pdf Back