Government formation post-election - Political and Constitutional Reform Contents

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]


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

previous page contents next page

© Parliamentary copyright 2015
Prepared 26 March 2015