Lessons from the process of Government formation after the 2010 General Election - Political and Consitutional Reform Committee Contents

5 Pre-election and post-election activity


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

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