5 Pre-election and post-election activity
Background
61. Traditionally the term 'purdah' has been used
to describe the convention that government activity is subject
to restrictions during an election campaign. The General Election
Guidance issued to civil servants before the 2010 general election
and published by the Cabinet Office describes these restrictions
in the following manner:
...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.[71]
The same guidance describes restrictions on public
appointments and communications activities. Similar guidance,
applying to the work of the UK civil service in the month before
local elections and elections in the devolved administrations,
states that "announcements on non-devolved matters could
have a bearing on the devolved elections. Ministers will be aware
of the potential sensitivities in this regard and might decide,
on advice, to postpone making controversial announcements until
after the elections".[72]
62. The Justice Committee made extensive recommendations
in this area towards the end of the last Parliament.[73]
The Cabinet Secretary told us that the draft chapter of the Cabinet
Manual on elections and government formation had been reviewed
in light of these comments.[74]
The December 2010 Cabinet Manual suggests that new guidance will
be issued to Ministers and civil servants each time there is an
election.[75]
Name of convention
63. The Justice Committee found that "the term
'caretaker' is clearer and more meaningful than 'purdah' and should
be used in formal guidance".[76]
In fact 'purdah' traditionally refers to restrictions on government
announcements, and 'caretaker' has been used to describe restrictions
on other government activity, and so to use 'caretaker' to describe
both would be misleading.[77]
The Cabinet Secretary also raised objections to the term 'caretaker'
in written evidence.[78]
The December 2010 Cabinet Manual refers to "restrictions
on government activity", which seems to us to be clear, accurate
and easily understood.[79]
Defining restrictions
64. The draft Cabinet Manual chapter explains that
restrictions apply between the announcement of an election and
polling day, and that these restrictions continue to apply after
a general election in the event of a hung Parliament.[80]
The application of the restrictions beyond the election is a new
constitutional development, rather than a reflection of a pre-existing
convention.[81]
65. The December 2010 Cabinet Manual provides significantly
more detail in this area. It makes clear that restrictions apply
"in the run-up to an election, immediately afterwards if
the result is unclear, and following the loss of a vote of confidence".[82]
It also sets out that a government should during these periods
defer
taking or announcing major policy decisions; entering
into large/contentious procurement contracts or significant long-term
commitments; and making some senior public appointments and approving
Senior Civil Service appointments.[83]
66. We
welcome the clarification and further detail of restrictions on
government activity set out in the December 2010 Cabinet Manual.
However, we remain concerned
on two specific points.
67. First, the December 2010 Cabinet Manual states
that in a period after an election producing a hung Parliament,
or after a successful vote of no confidence,
the Government would be able to announce its policy
intentions—including policies it might hope to include in
the Queen's Speech—since restrictions on announcements that
would be inappropriate during an election campaign need no longer
apply. [84]
68. We are concerned that announcements by the Government
in such circumstances could be used to party-political advantage,
even if no election has been announced or is in obvious prospect.
69. Secondly, in any period where there is doubt
as to whether a government can command the confidence of the House
of Commons, the restrictions on government activity should be
more stringent and limit a government to only its day-to-day running
and urgent and essential decisions. These more stringent restrictions
would apply after a general election where there was no overall
majority and after a vote of no confidence.
70. We recommend
that the Cabinet Manual should be amended to:
a) reflect
that restrictions on public announcements apply not only in the
weeks before an election but also in situations where there is
doubt as to who can command the confidence of the House of Commons;
and
b) make
clear that the restrictions which apply to government activity
where there is doubt as to who can command the confidence of the
House of Commons are more stringent than those which apply to
government activity before an election.
Restrictions in practice
71. During the periods in which restrictions on government
activity apply, there are two eventualities for which the civil
service should prepare.
72. The first is the need for Ministers to consult
politicians from other parties in the event that important business
cannot be delayed. As the Justice Committee noted:
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.[85]
73. An example of such a circumstance occurred on
9 May 2010, at a time when party negotiations to form a new government
were still ongoing. On this day, Rt Hon Alistair Darling MP, the
incumbent Chancellor of the Exchequer, attended an extraordinary
meeting of the European Council of Finance Ministers (ECOFIN)
in Brussels, called to address financial stability in Europe.
At that meeting, the Chancellor agreed to the creation of a new
European Financial Stabilisation Mechanism, as part of a comprehensive
package of measures to preserve financial stability in the EU,
providing for the EU Budget to guarantee EU borrowing to support
Member States in need, up to the level of €60 billion. Other
commitments reached at the meeting, in particular a Special Purpose
Vehicle of up to €440 billion, did not involve any financial
commitment from the United Kingdom. We do not dispute Alistair
Darling's view that "the meeting was urgent and decisions
had to be reached by the time the markets opened on the Monday
morning".[86]
74. Before attending the meeting, Alistair Darling
consulted Rt Hon George Osborne MP and Rt Hon Vince Cable MP,
at the time the Conservative and Liberal Democrat Treasury spokesmen.[87]
While George Osborne suggests that he "cautioned against
committing the UK to proposals that have a lasting effect on the
UK's public finances", Alistair Darling submits that "their
view was that [as] I was still the Chancellor they were not offering
an opinion as to what I should do".[88]
75. In the event, as Alistair Darling writes, "the
proceedings were subject to [Qualified Majority Voting] and ...
for us to have abstained would have meant we would have been outvoted
anyway but we would have lost our influence in the other matters
which would be regarded as important".[89]
Therefore we recognise why Alistair Darling took the course of
action he did.
76. We also recognise that Alistair Darling was correct
to consult his Opposition counterparts. In his evidence to us,
he states that "Whilst there is no formal obligation to consult,
I believe it is a matter of courtesy that it was right to ensure
that the then Opposition was fully informed".[90]
This is consistent with the language of the draft Cabinet Manual
chapter available at the time which states that as an alternative
to postponing important decisions, "other options include
... consulting with the opposition parties".[91]
The December 2010 Cabinet Manual uses stronger wording, stating
that "If decisions cannot wait, they should, where possible,
be handled by temporary arrangements or consultation with the
relevant opposition spokesperson".[92]
Where an incumbent Government
needs to take a decision on an important matter that cannot be
postponed during a period where restrictions on government activity
apply, the duty to consult Opposition parties is more than a matter
of courtesy. It is a recognition of an uncertain democratic mandate.
We welcome the fact that the draft Cabinet Manual now makes this
clear.
77. The second eventuality for which the civil service
should prepare is where Ministers take decisions or make announcements
which breach the restrictions. The Justice Committee recommended
in February 2010 that "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."[93]
In written evidence, the Cabinet Secretary set out his view on
how this could happen.
It is my view that this can be addressed through
the existing rules which apply to accounting officers, which will
continue to apply during the three periods outlined above. Any
restrictions on government activity in place during those periods
will be relevant to the application of a Ministerial direction
to accounting officers, as any commitments of public resources
for political purposes must be avoided.
... In normal circumstances the direction would be
sent to the Comptroller and Auditor General, who would then forward
it to the Committee of Public Accounts. However, if there is a
period when restrictions on government activity are in place and
Parliament is not sitting, then the direction together with the
reasoning provided by the accounting officer could be made public
by the department immediately and laid before both Houses at the
first opportunity after Parliament meets. The direction should
also be sent to the Comptroller and copied to the Treasury Office
of Accounts at the time of publication.[94]
78. This view is reflected in the guidance provided
in the December 2010 Cabinet Manual .
79. Guidance
from HM Treasury to accounting officers where a conflict arises
between their duties and a Minister's instructions states that:
3.4.2 If, despite the Accounting Officer's advice,
the minister decides to continue with a course the Accounting
Officer has advised against, the Accounting Officer should ask
for a formal direction to proceed. This can be oral but, if so,
should be confirmed in writing as soon as possible.
3.4.4. When a direction is made, the Accounting Officer
should:
copy the relevant papers to the C&AG promptly.
The C&AG will normally draw the matter to the attention of
the PAC, who will attach no blame to the Accounting Officer.[95]
80. As the Cabinet Secretary points out, the Committee
of Public Accounts no longer exists after Parliament has been
dissolved. He is therefore right that the direction needs to be
made public using another mechanism. However, we suggest that
rather than individual accounting officers having this responsibility,
this should be a matter for the Comptroller and Auditor General,
who is statutorily independent of the Government and owes no allegiance
to Ministers.[96]
81. We recommend
that civil service guidance should be drawn up and published on
facilitating consultation between political parties during periods
in which restrictions on government activity apply. This guidance
should set out the processes to be followed where differences
of opinion arise between Ministers and civil servants on the application
of the restrictions. With regard to the specific issue of a Minister
making a written direction to an Accounting Officer in the period
before a general election, we recommend that the Government, in
consultation with the Comptroller and Auditor General, should
consider whether it would be better that the Accounting Officer
should copy the relevant papers promptly to the Comptroller, in
the expectation that he will publish them as soon as possible,
rather than expect the Accounting Officer to arrange for their
publication himself.
Pre-election contact between
the civil service and opposition politicians
82. The incumbent Prime Minister authorised contact
between civil servants and opposition parties to take place from
January 2009, to enable them to work together in the event a change
of administration.[97]
83. Under current convention this contact takes place
only after authorisation is given by the Prime Minister.[98]
The December 2010 Cabinet Manual states that "At an appropriate
time towards the end of any Parliament ... the Prime Minister
writes to the leaders of the main opposition parties to authorise
pre-election contacts with the Civil Service".[99]
84. However, Professor Hazell suggested to us that:
in future the Cabinet Secretary might, as a courtesy,
inform the Prime Minister that he has authorised pre-election
contact in the usual way, and at the usual time in the electoral
cycle, without feeling that the Prime Minister has to give his
permission and therefore implicitly might be able to veto pre-election
contact.[100]
85. We do not agree. The civil service works for
the government of the day, and it
is for the Prime Minister to determine when contact between civil
servants and opposition parties can take place. There is no reason,
however, why the authorisation for such contact could not be given
in advance, as a matter of course, soon after a general election,
rather than at a time when speculation about the future of an
incumbent government may inhibit a decision.
86. The Cabinet Secretary raised with us how this
convention might operate if the Fixed-term Parliaments Bill becomes
law.[101] A regular
parliamentary cycle would make it possible for the Cabinet Manual
to specify a normal start time for pre-election contact. However,
there would still need to be a reserve mechanism for authorising
contact in the event of an early general election.
71 General Election Guidance: http://www.cabinetoffice.gov.uk/media/354815/2010electionguidance.pdf Back
72
Elections to the Scottish Parliament, the National Assembly for
Wales, and Local Elections in England: Guidance on Conduct for
Civil Servants in UK Departments, http://www.cabinetoffice.gov.uk/media/cabinetoffice/propriety_and_ethics/assets/electionsguidanceforukofficials.pdf
Back
73
Justice Committee, Constitutional Processes Following a General
Election Back
74
Ev 76 [Sir Gus O'Donnell] Back
75
Cabinet Office, The Cabinet Manual - Draft, December 2010 Back
76
Justice Committee, Constitutional Processes Following a General
Election, para 13 Back
77
Q 132 [Professor Robert Hazell] Back
78
Ev 77 Back
79
Cabinet Office, The Cabinet Manual - Draft, December 2010,
para 67 Back
80
Cabinet Office, Cabinet Manual Chapter 6 [draft] Back
81
Justice Committee, Constitutional Processes Following a General
Election, Q 100 Back
82
Cabinet Office, The Cabinet Manual - Draft, December 2010 Back
83
As above Back
84
As above Back
85
Justice Committee, Constitutional Processes Following a General
Election, para 13 Back
86
Ev w15 Back
87
Ev w15 Back
88
Ev w15 Back
89
Ev w15 Back
90
Ev w15 Back
91
Cabinet Office, Cabinet Manual Chapter 6 [draft] Back
92
Cabinet Office, The Cabinet Manual - Draft, December 2010 Back
93
Justice Committee, Constitutional Processes Following a General
Election, para 13 Back
94
Ev 77 Back
95
HM Treasury, Managing Public Money, para 3.4 Back
96
National Audit Act 1983 s1 Back
97
Cabinet Office, The Cabinet Manual - Draft, December 2010
para 60 Back
98
Q 212 Back
99
Cabinet Office, The Cabinet Manual - Draft, December 2010
para 60 Back
100
Q 143 Back
101
Q 212 Back
| 
