Supplementary memorandum from Robert Hazell
and Peter Riddell
A DRAFT CARETAKER CONVENTION FOR THE UK MODELLED
ON THAT IN AUSTRALIA AND NEW ZEALAND
This supplementary Memorandum is submitted to
make the case for having a proper caretaker convention in the
UK. The Cabinet Office might be encouraged to develop better guidance
if the Committee expressed its support for a stronger convention.
The current guidance is as follows:
"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 action of a continuing or long-term character. Decisions on
matters of policy, and other issues such as large and/or contentious
procurement contracts, 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." (Cabinet Office General
Election Guide 2005, Guidance Note G).
The guidance is deficient in three respects:
— It applies only during election periods.
— It offers detailed guidance about public
appointments (in the next four paragraphs), but no further guidance
about government contracts.
— It contains no guidance about how to
consult the opposition parties, if that is required.
In Australia and New Zealand the caretaker convention
also applies after an election, until a new government is sworn
in. The underlying principle is that a government derives its
political authority to govern from commanding the confidence of
Parliament. If the government does not enjoy that confidence,
it should be careful not to take any decisions which might tie
the hands of a prospective government which does enjoy confidence.
As the Australians put it, "A caretaker government has legal
but not political legitimacy. Its role is to ensure the ordinary
business of government continues until the outcome of the electoral
contest is clear" (Davis et al 2001).
The text of the New Zealand caretaker convention
is at pp 28-31 of our original submission. In essence it can be
distilled into the following principles:
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.
The immediate need in the UK is to develop an
understanding that a caretaker convention should apply after an
election, if it is not clear who can command confidence in the
new Parliament, until that becomes clear and a new government
is sworn in. This period is likely to last only for a few days,
but it could possibly last weeks, if recent experience of parliaments
in Australia, New Zealand, Scotland and Wales is any guide. In
that circumstance it is desirable to have a shared understanding
that the incumbent government continues to govern, but subject
to a caretaker convention.
This is not just a matter of constitutional
nicety, but could be vital to public policy, especially in a financial
crisis. In New Zealand the outgoing National party Prime Minister
Robert Muldoon faced a financial crisis after the1984 election.
He was urged to devalue the NZ dollar in line with the incoming
Labour government's policies. He refused, and since he was legally
Prime Minister, Labour were unable to prevail. It was only after
three days of political and constitutional wrangling (during which
Muldoon's own colleagues went to see the Governor General to urge
his dismissal) that Muldoon relented and agreed to devalue. The
result of Muldoon's refusal to devalue was later estimated at
NZ$800 million: over 2% of NZ's GDP in 1984.
It was after that crisis that New Zealand developed
a proper caretaker convention. We do not want to wait for a similar
crisis before we are forced to develop a caretaker convention
here. Far better to put the convention in place so that everyone
knows the procedure just in case we face a financial or other
crisis at the start of a hung parliament. If the Committee gave
its cross party support to that principle, the Cabinet Office
could work out the details by developing a proper caretaker convention.
The convention needs to apply after the election until a new government
is sworn in; to cover government contracts and matters such as
financial policy; and to explain the procedures for consulting
the opposition parties.
REFERENCESDavis et
al, 2001. Davis G, Scales B, Lyn A and Wilkins R, "Rethinking
Caretaker Conventions for Australian Governments" Australian
Journal of Public Administration 60:3, 11-26 Sept 2001.
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