3 Operation of the 'caretaker convention'
What is the 'caretaker period'?
20. The 'caretaker period' refers to the period after
the general election until a new Government that commands support
of the House of Commons has been formed. In the UK transition
periods have traditionally been very short: according to Dr Petra
Schleiter and Valerie Belu "on average government formation
in the UK took just four days in the period 1945-1994". Therefore,
the need for a 'caretaker' government and rules governing this
period have been largely unnecessary until now.
Necessity to differentiate between
the 'caretaker' and 'purdah' rules
21. One issue raised with us during the course of
this inquiry is the different rationale for the rules during the
'purdah' period—the period prior to an election when the
parties are officially on an election footing—and the rules
during a 'caretaker' period—the period following an election
before any new government has been appointed. While there is always
a purdah period before an election, rules for caretaker periods
only apply in the event that the outcome of an election has not
delivered an overall majority for one party.
22. We heard from Professor Hazell that that the
purdah rules before elections apply "even when a Government
is not a caretaker Government but has a full working majority".[14]
For example, during local government or European elections the
incumbent Government "should not use the Government publicity
machine to generate good news stories for your party."[15]
The restrictions during a 'caretaker' period are for significantly
different reasons. Dr Petra Schleiter and Valerie Belu stated
in their written evidence:
Caretaker conventions exist to permit limited
government until the next regular administration can be formed.
Their function is to protect the national interest and to ensure
that there is always an executive to continue 'daily administrative
management, custody of ongoing concerns, and handling of urgent
matters and international commitments'.[16]
23. In the section 'Restrictions in Government Activity',
the Cabinet Manual, in paragraphs 2.27-2.29, states:
While the government retains its responsibility
to govern and ministers remain in charge of their departments,
governments are expected by convention to observe discretion in
initiating any new action of a continuing or long-term character
in the period immediately preceding an election, immediately afterwards
if the result is unclear, and following the loss of a vote of
confidence. In all three circumstances essential business must
be allowed to continue.[17]
During this period [the run up to the General
Election], the government retains its responsibility to govern,
ministers remain in charge of their departments and essential
business is carried on. Ministers continue in office and it is
customary for them to observe discretion in initiating any action
of a continuing or long-term character.[18]
In the same section, the Manual goes on to say that
after the election, whilst there is no new Government in place
"many of the restrictions set out in para 2.27-2.29 would
continue to apply".[19]
This means the rules for what should happen in a caretaker period
are unclear.
24. Dr Petra Schleiter and Valerie Belu argue that
"the current conventions do not adequately specify why government
power is restricted during caretaker periods".[20]
It is important that purdah and caretaker periods are clearly
distinguished as there are different rationales for the restrictions
on government activity under the two. Professor Hazell explained:
It would help to keep them conceptually and practically
distinct if Cabinet Office could adopt the term 'caretaker convention'
to describe the restrictions on government decision making. The
'purdah' rules describe the restrictions on government publicity,
which apply during any election, even when the government has
a majority.[21]
25. We asked the Cabinet Secretary, Sir Jeremy Heywood,
about clarity in using the two terms in the Cabinet Manual and
using the term 'caretaker government' more readily. He told us:
[T]he term we use, the purdah, and restrictions
around purdah, is more commonly understood in the civil service
than in Government, I think. Since the current arrangements seem
to work quite well, we have not found the need to invent some
new technical term.
He also made it clear he thought that there was no
confusion between the two different periods in the Cabinet Manual.
26. It is clear to us that there are significantly
different rationales for restrictions on the normal government
activity during a 'purdah' period before an election and a 'caretaker'
period afterwards. This is not made clear in the Cabinet Manual.
During the former, which is in place for any election, the Government
may still command a majority in the outgoing House of Commons
but is expected to observe discretion in initiating any new action
of a continuing or long-term character which might aid an election
campaign.
27. During a caretaker period, the incumbent government
can no longer command the confidence of Parliament and a new administration
will eventually be formed. The rationale for the incumbent Government
remaining in place during the caretaker period is that it can
continue with the management of the country, carrying out administrative
tasks and dealing with any urgent matters which arise, and ensuring
that there is a continuous source of constitutional advice to
the Queen.
28. We recommend that in the next Parliament the
Cabinet Manual should be updated to differentiate more clearly
the reasons behind the periods of restriction. This will give
greater clarity to Ministers, Members of Parliament, civil servants
and the public about what should and what should not happen during
these periods.
Right of an incumbent Prime Minister
to remain in office
29. After the 2010 election, the then Prime Minister,
Rt Hon Gordon Brown MP, remained in office pending the completion
of the coalition talks. In the media he was described as a 'squatter
in Downing Street' and there were calls for him to resign, despite
being encouraged by the then Cabinet Secretary to remain in post.
We heard from many of our witnesses that it is important for the
incumbent Prime Minister to remain in post whilst negotiations
on who will be able to form the next Government are taking place.
Dr Petra Schleiter and Valerie Belu stated, "To ensure effective
governance in the transition period, it is essential that the
Prime Minister and government do not resign until the next regular
government has been formed".[22]
30. The Cabinet Secretary recognised that there is
some debate over whether there is a duty on the incumbent Prime
Minister to remain in office after the General Election. He acknowledged
that the Cabinet Manual currently recognised different views and
that "the passage of time will determine whether or not what
happened last time around will become a constitutional convention."[23]
He went on to praise Gordon Brown for staying in office in May
2010 until it was clear that someone else was in a better position
to form an administration.
31. In our report on Revisiting the Cabinet Manual,
we concluded that the Cabinet Manual should clarify the principle
that there must always be a Government in place.[24]
In the same report we recommended:
for the benefit of the media and the general
public, the Cabinet Secretary should set out clearly, and well
in advance of the forthcoming general election, the Government's
view of the constitutional principles which underpin the continuance
in office or otherwise of administrations following a general
election.[25]
32. The current Cabinet Secretary addressed the matter
thus:
I think there is a debate about this that has
not been fully resolved [….] the idea was that [Gordon Brown]
would stay in Downing Street until it was pretty clear who would
be better placed than [him] to form another Government. That is
what he did and that is what happened and we ended up with a very
smooth transition. I would certainly urge a future Prime Minister
in the same position to adopt a similar approach. Certainly, I
think it is quite important that this issue is widely debated
and discussed and hopefully agreed before the next election, just
in case the situation arises again.[26]
33. Should the outcome of the 2015 election result
in a House of Commons with no overall majority, the public and
media should expect to see the incumbent Prime Minister remain
as Prime Minister, in 10 Downing Street, even if there is little
prospect that he will be able to form an administration. The incumbent
Prime Minister should remain in office until it is clear that
a new administration is in a position to form a Government which
will command the confidence of the House of Commons. Indeed we
consider that there is a duty on him to stay in place until such
a time.
Incumbent Ministers
34. As well as the incumbent Prime Minister, other
Ministers remain in post during the caretaker period. For example,
Alastair Darling remained as Chancellor of the Exchequer until
11 May 2010, five days after the election, and attended a meeting
of finance ministers representing the UK as its Chancellor of
the Exchequer.
35. We considered whether Ministers who have lost
their seats should be able to make decisions as part of a 'caretaker
government'. There is a statutory bar on this in the Scottish
Government and the Welsh Government: section 47 of the Scotland
Act 1998 requires Ministers to be drawn from the Parliament, and
provides that they cease to hold office if they lose this status.
Section 53 of the Government of Wales Act 1998 also requires Assembly
Secretaries to be Assembly Members.
36. There is no such requirement for 'caretaker Ministers'
to remain as MPs in order to continue acting in this role. The
Cabinet Secretary confirmed to us that Ministers who have lost
their seats could continue to serve in a caretaker government
and take decisions.[27]
37. Following the 2015 election, in the event
of a House of Commons with no overall majority and an extended
negotiating period, the public should expect to see Ministers
who have lost their seats in the House continuing in their ministerial
roles until a new government has been formed.
Duty on a 'caretaker' government
to consult with other parties
38. It is not clear from the Cabinet Manual whether
there is a duty on an incumbent government to consult with other
parties in circumstances where an important decision needs to
be made urgently and it is unclear what the composition of the
next government will be. The IFG stated:
Where postponement [of a Ministerial decision
during a caretaker period] would be 'detrimental to the national
interest or wasteful of public money', the guidance [in the Cabinet
Manual] suggests they either make temporary arrangements or consult
with the Opposition.[28]
39. In 2010 one such event which arose during the
post-election period and which could not be postponed was an extraordinary
meeting of EU finance ministers, which was set to adopt far-reaching
new powers for the European Commission, as well as signing up
to an EU bailout of the euro. In that instance the then Chancellor
of the Exchequer, Alastair Darling, chose to consult his Conservative
and Liberal Democrat counterparts before the meeting, though the
Cabinet Secretary confirmed to us that the consultation "amounted
to telling them what was going to happen, and the other parties
accepted that".[29]
40. When asked what was a suitable level of consultation
and what consideration the incumbent government should give to
the views of other parties, the Cabinet Secretary stated:
In the end, if a decision absolutely has to be
taken, cannot be postponed, or it would be illogical or counterproductive
or expensive to postpone it, then the Government of the day has
to take that decision. As a courtesy, it would be sensible to
raise it with the other two people who might be involved in the
future.[30]
41. Dr Petra Schleiter and Valerie Belu stated that
while there is a convention to consult with other parties there
was "no constitutional convention preventing him [Mr Darling]
from making substantial commitments that would have bound the
incoming government, possibly in direct contradiction to its policy
position."[31]
WHO SHOULD THE 'CARETAKER GOVERNMENT'
CONSULT WITH?
42. After the 2010 election, it was reasonably clear
which parties were most likely to be in a position to form a new
administration, and therefore with whom the incumbent government
should consult with should they have to take a decision. In 2015
the situation could be different and it could be unclear who will
be in a position to form a government.
43. When questioned about who should be consulted
first, the Cabinet Secretary told us:
That will depend very much on the particular
circumstances. What is absolutely clear is during that period,
whether you want to call it a caretaker period or some other terminology,
the Government is the Government of the United Kingdom and have
the right to govern and to take essential decisions with the support
of the civil service. In cases where they felt they really did
have to [take a decision], it would be courteous to explain that
to the Opposition.[32]
44. We believe that any caretaker administration
required to take significant decisions during a period of Government
formation should consult each of the parties taking part in negotiations
relating to the formation of the next Government; however, we
recognise that if a decision needs to be made urgently and agreement
with other parties cannot be met, the caretaker administration
has a right to take a decision, bearing in mind the public interest.
End of a caretaker period
45. The end of the caretaker period is inextricably
entwined with the appointment of the new administration, or, in
certain circumstances, the continuation in office of elements
of the incumbent administration following negotiations. The Cabinet
Manual says only that when the caretaker period ends "depends
on circumstances, but may often be either when a new Prime Minister
is appointed by the Sovereign or where a government's ability
to command the confidence of the Commons has been tested in the
House of Commons".[33]
Professor Robert Hazell stated that "This is not satisfactory,
especially if the post-election negotiations take some weeks.
It should always be clear to politicians, Whitehall, the media
and the public whether a government is a caretaker or not."[34]
46. In practice, caretaker government usually
ends when the Queen invites the person most likely to form a government
that commands the confidence of the House of Commons to do so.
Sir Jeremy Heywood noted that a core principle of government formation
was that the Sovereign must remain above any political controversy.
To adhere to that principle, the invitation to form a new government
is issued on the advice of the incumbent Prime Minister. Where
the election delivers a clear majority to a single party, this
process is straightforward, with the caretaker period coming to
an end when the leader of the majority party is invited to form
the new government—usually in a matter of hours. However,
where the election does not deliver a decisive result, it can
be less straightforward.
47. The Cabinet Manual states that an incumbent government
remains in office until the incumbent Prime Minister tenders his
or her resignation and that of the government to the Queen. This
resignation should be tendered when it becomes apparent that another
individual is better placed to form an administration that can
command the confidence of the House. It is easy to envisage a
situation where it becomes apparent that an incumbent government
is unlikely to command the confidence of the House but the composition
of the new government has yet to be established: in 2010, Gordon
Brown resigned in favour of David Cameron at a time when negotiations
between the Conservatives and Liberal Democrats were still continuing.
The Cabinet Manual notes that, by recent tradition, Prime Ministers
have not resigned until their likely successor has become apparent
but that "[i]t remains to be seen whether or not these examples
will be regarded in future as having established a constitutional
convention."[35]
Ultimately, "it remains a matter for the Prime Minister,
as the Sovereign's principal adviser, to judge the appropriate
time at which to resign".[36]
48. Where it is unclear who is best placed to form
a government, the Cabinet Manual clearly states that the first
opportunity to do so falls to the incumbent Prime Minister: "An
incumbent government is entitled to wait until the new Parliament
has met to see if it can command the confidence of the House of
Commons, but is expected to resign if it becomes clear that it
is unlikely to be able to command that confidence and there is
a clear alternative."[37]
49. We have highlighted the lack of clarity surrounding
the transition between governments before[38]
and the issue was strongly reiterated to us in the course of this
inquiry.[39] Where elections
have delivered decisive results, this lack of clarity has been
easily ignored. Yet it is precisely when there is no decisive
result that clarity is needed.
50. We recommend that, for the avoidance of doubt,
a caretaker administration should continue in office until it
can be demonstrated that a prospective new administration will
have the confidence of the House of Commons. A single party majority
or a formal majority coalition agreement have been taken as tantamount
to a formal vote of confidence. Where there is any doubt, the
caretaker administration should continue until that doubt has
been removed.
14 Q7 [Prof. Robert Hazell] Back
15
Q7 [Prof. Robert Hazell] Back
16
Dr Petra Schleiter and Valerie Belu (GFE 02), para 12. The reference
is to Geert Bouckaert and Marleen Brans, 'Governing without Government:
Lessons from Belgium's Caretaker Government', Governance,
April 2012, p 174. Back
17
The Cabinet Manual, Cabinet Office, October 2011, para 2.27 Back
18
Ibid, para 2.29 Back
19
Ibid, para 2.30 Back
20
Dr Petra Schleiter and Valerie Belu (GFE 02), para 10 Back
21
Robert Hazell (GFE 04), para 8 Back
22
Dr Petra Schleiter and Valerie Belu (GFE 02), para 8 Back
23
Q112 [Sir Jeremy Heywood] Back
24
Revisiting the Cabinet Manual, Fifth Report of Session 2014-15,
HC 233, para 60 Back
25
Ibid Back
26
Q112 [Sir Jeremy Heywood] Back
27
Q128 [Sir Jeremy Heywood] Back
28
Institute for Government (GFE 03), para 4 Back
29
Q117 [Sir Jeremy Heywood]. It was subsequently reported that whilst
George Osborne was consulted he indicated that abstention from
the decision might be more appropriate given the caretaker nature
of the administration: see 'Osborne urged Darling to opt out of EU bail-out'
The Telegraph 1 July 2011. Back
30
Q121 [Sir Jeremy Heywood] Back
31
Dr Petra Schleiter and Valerie Belu, "Avoiding Another 'Squatter in Downing Street' controversy: The need to Improve the Caretaker Conventions before the 2015 Election",
Political Quarterly, Vol.85, No.4 (2014), p.454 Back
32
Q115 [Sir Jeremy Heywood] Back
33
The Cabinet Manual, Cabinet Office, October 2011, para 2.30 Back
34
Robert Hazell (GFE 04), para 9 Back
35
The Cabinet Manual, Cabinet Office, October 2011, para 2.10 Back
36
The Cabinet Manual, Cabinet Office, October 2011, para 2.10 Back
37
Ibid, para 2.12 Back
38
Lessons from the process of Government formation after the 2010 General Election,
Fourth Report of Session 201011, HC 528, para 16-27 Back
39
For example, Institute for Government (GFE 03) para 8; Robert
Hazell (GFE 04) para 9; Dr Petra Schleiter and Valerie Belu (GFE02)
para 8 Back
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