House of Lords - Constitutional implications of coalition government

Constitutional implications of coalition government - Constitution Committee Contents

CHAPTER 5: END OF THE PARLIAMENT

101. Coalition government is likely to bring a different character to the final months of a Parliament. Instead of a single party governing and setting out its collective vision for a further term in office, a coalition that remains together until polling day will contain parties which will set out their individual manifestos while continuing to govern together. This has implications for politicians, for the civil service and for Parliament; it also has implications for good government, and therefore for the public, if the issues are not resolved. These are issues that the political parties and the Government need to start thinking about now.

Pre-election contact between parties and civil service

102. It is established practice that civil servants make contact with the main opposition parties in the run-up to a general election.[115] The purpose of this contact is to enable civil servants to understand proposed policies for their department and to allow conversations between shadow ministers and civil servants about organisational structures and proposed changes to take place.[116]

103. The existence of a coalition government complicates the pre-election contacts convention in several ways. Having two of the main three parties at Westminster in government could mean that those parties have an advantage over the single opposition party. Symmetry in access to information is important for fairness and to maintain the impartiality of the civil service.[117] Lord Butler of Brockwell, Cabinet Secretary from 1988-98, favoured "widening" opposition access to civil service advice, to provide a "level playing field" for the parties.[118]

104. The existence of a coalition may also serve to undermine access to information by the governing parties, particularly the smaller party or parties. Even where ministerial portfolios of a smaller party are spread across the government, there may be some departments in which it does not have a ministerial presence. Without a minister in a particular department, a smaller party is at a disadvantage in formulating relevant policy beyond the next election, as it lacks the capacity to commission work from within the department and is not eligible for pre-election contact with the department's civil servants.

105. Even where a smaller party has ministers in a department, its access to information may be restricted. As Peter Riddell put it:

119

106. There is a need to set clear arrangements for pre-election access to information. There are two options available to the Government.

107. The first option is to allow ministers of any rank to commission confidential briefings from across a department's remit. At present such briefings may be provided only with the permission of the secretary of state, who may see the briefing. When planning for an election, junior ministers may not want ministerial colleagues from another party to see this material.[120] Therefore, if this option were chosen, a junior minister would be able to request factual information from beyond his or her area of responsibility without the secretary of state being privy to that briefing; equally the secretary of state could request briefing about that junior minister's area of policy without the junior minister seeing the information.

108. The alternative option is to treat all major parties on the same basis, with coalition ministers on the same footing as shadow ministers. This was the approach in Scotland in 2003 and 2007; it "allowed the coalition parties to engage with the civil service without concerns about propriety on either side".[121] There may be practical implications, though, as it could constrain the capacity of ministers to receive briefings from their own officials. If briefings on matters beyond the next election are restricted to this common pre-election briefing process, would officials be able to brief ministers on long-term issues?

109. We recommend that ministers should be able to commission confidential briefings from officials within their departments for the purpose of developing policy for the next Parliament without those briefings being disclosed to ministers from their coalition partners. Arrangements should be put in place in those departments where one party has no ministers to allow for briefing to that party. The Official Opposition should be granted pre-election contact with the civil service in the normal way. These arrangements should be added to the next edition of the Cabinet Manual.

The election campaign

110. Both parties to the coalition Government have committed themselves to remaining in office together until the next general election.[122] This means there will be two parties running the Government together while campaigning against each other. This would be in contrast to previous coalitions at Westminster, which have either run for re-election as coalitions, as with the wartime coalition in 1918 led by David Lloyd George and the National Government in the 1930s, or split up prior to a general election, as when the Labour party left the wartime coalition following VE Day in 1945, precipitating the July 1945 general election. It has been clearly stated by both parties in the current Government that that they will run on their own platforms at the next general election, apparently while also remaining in Government together. This raises questions for the political parties and for the operation of government. Thought needs to be given to how ministers and civil servants should act during the period before the poll.

111. Although this situation would be unprecedented in Westminster, there are precedents in the devolved legislatures. In Scotland and Wales coalitions have remained in office together up to polling day.

112. The issue can be seen as an extension of the problems around collective responsibility set out in chapter 4. During the election campaign, the same person may present differing messages in his or her two capacities as a party spokesperson and as a government minister. Likewise two ministers from the same government department may present differing policies—potentially each different from the agreed position of the coalition. This has implications for both elements of collective responsibility: the internal working of government and the presentation of a collective government position.

113. How collective ministerial responsibility will be managed during the election campaign is unclear.[123] This will present slightly different problems in the month-long "purdah" period after the dissolution of Parliament and in the weeks (or months) leading up to dissolution.[124] During the "purdah" period, government continues but controversial or long-term decisions are avoided. As the Cabinet Manual states: "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 ... If decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition."[125]

114. Prior to the dissolution of Parliament, parties may seek to demonstrate their particular achievements and priorities in a period when the Government is still able to undertake new initiatives and actions. Beyond the advice to observe discretion, the Cabinet Manual does not provide guidance over how responsibility and accountability will operate during purdah in a coalition.

115. Lord McConnell of Glenscorrodale stressed the need for continuing dialogue between coalition ministers during the election campaign: "dialogue between the two leaders in a situation where they are constantly debating with each other in public is still going to be important during the election campaign."[126]

116. In both Scotland and Wales, specific ministers or advisers were appointed to monitor what their party colleagues were saying about their coalition partners. The experience in these elections was that it tended to be coalition backbenchers, rather than ministers, who attacked the policies of coalition partners.[127] Lord McConnell and Rhodri Morgan both contrasted their coalitions with the more party-political Government in Westminster, particularly the tendency of each party to claim individual ownership of specific policies rather than collective authorship.[128] This suggests that the problems of maintaining collective ministerial responsibility might be greater for the UK Government than in previous Scottish and Welsh coalitions.[129]

117. As with collective responsibility in general, any divergence of views between ministers has implications for the work of the civil service. This is particularly the case where ministers in a department advocate future policies that differ from the government position. Greater clarity will be needed in a coalition government than for a single-party administration about when a minister is speaking as a member of the government and when he or she is the party's spokesperson.

118. Civil servants are issued with guidance when a general election is called. The 2010 guidance restricted their work for ministers to resolving issues that could not be deferred until after polling day and to providing factual briefing. They were not to provide arguments, policies or costings for use in political campaign debates.[130] With most departments containing ministers from both coalition parties, there is also a question about information-sharing within departments and the wider government. This is likely to require guidance to be issued to civil servants before an election when a coalition is in power on how to support ministers of different parties.

119. Although few important decisions are taken during the "purdah" period before a general election, constitutional conventions about the business of government—including collective decision-making and collective responsibility—must continue to apply. Appropriate guidance should be issued to civil servants.

Fixed-term Parliaments and the "wash up"

120. Once a general election has been called, Parliament usually continues to meet for two to four days to dispose of unfinished business before it is dissolved. This typically involves several bills being passed swiftly. Other bills might be lost altogether, and some passed with various provisions omitted. Governments seek the co-operation of the opposition in this process.[131] This period of rapid legislating is known as a "wash up".

121. The "wash up" process has been controversial, particularly in 2010 when the conventions around it were thought to have been strained by the inclusion of controversial bills and by their timetabling.[132] It has been argued that the process "restricts parliamentary scrutiny and marginalises backbenchers, minor parties and crossbench peers."[133] This committee was critical of the inclusion of constitutional legislation—the Constitutional Reform and Governance Bill—in the 2010 "wash up".[134]

122. Under the Fixed-term Parliaments Act 2011 a general election is scheduled on the first Thursday in May every five years.[135] The Act has had the side-effect of producing a pattern of regular sessions running from roughly May to May, rather than the previous pattern of November prorogations often matched with May or June elections, resulting in short and long sessions either side of a general election.[136] The Cabinet Manual states that a "wash up" may occur prior to an early election and includes it in the timetable for such a poll, but not for a scheduled election.[137]

123. When asked about the prospects for a "wash up" in this Parliament, Lord Strathclyde told us:

138

124. The Fixed-term Parliaments Act 2011 should allow any government (whether coalition or single-party) to plan sufficiently well to avoid having a "wash up". We acknowledge that there may be certain items of legislation that require expedition before an election, such as a short Finance Bill or legislation in response to an emergency. We recognise that there may be other unfinished business which it is prudent to dispose of before Parliament dissolves. While we agree with Lord Strathclyde that there should be no need for a "wash up" to take place before a scheduled election in a fixed-term Parliament, a more limited "wash up" than in the past may still take place. The Government should introduce legislation in the final session of the Parliament in good time for it to be passed on a normal timetable before Parliament is dissolved.

Access to papers of a previous administration

125. There is a well-established convention that ministers of a current administration may not generally see documents of a former administration of a different political party. The convention was articulated in 1980 in a written answer by the then Prime Minister:

139

126. The statement embodies a balance between access to information in order to maintain continuity of government and the withholding of information from ministers where it could be used to discredit a predecessor of a different party. Where other information is required, the 1980 statement indicates that the approval of the former minister in question must be sought.[140]

127. The purpose of the convention is to maintain the confidentiality of civil service advice and government policy-making. It allows ministers to set out their views and request briefing in the knowledge that members of a subsequent government will not have access to them or make them public. Where exceptions to the rule are considered, the "guiding line must be to avoid embarrassment to previous ministers."[141]

128. The convention is clear as far as the papers of successive single-party governments are concerned. However, there is uncertainty over how it would apply to the papers of a coalition government. Lord O'Donnell suggested that the formation of a future Labour-Liberal Democrat coalition could lead to uncertainty over access by Liberal Democrat ministers to papers from the Conservative-Liberal Democrat Government:

142

129. The same issue could arise in other circumstances, such as a single-party government where the party had formerly been in a coalition, or a coalition in which one of the parties had previously formed a single-party government.

130. This issue, like other consequences of coalition government, does not appear to have been considered by either the current Government or the Opposition. Lord Falconer of Thoroton told us as much, and stated that his initial response was that he expected the convention to function as normal.[143] So did Oliver Letwin MP, who said that his conversations in government had been conducted on the presumption that a future government made up of one or more other parties would not have access to the current Government's papers.[144]

131. We recommend that the convention on access to the papers of a previous administration should be retained. Its application needs adapting, though, to account for coalition governments:

· Where a coalition is renewed following an election, the convention should function as for a re-elected single-party government.

· Where one party in government was previously in a coalition, they should be able to access papers of ministers from their party, but to access departmental papers of ministers from their former coalition partner party they must obtain permission from the relevant minister or the leader of that party.

· Any party entering government (whether in a coalition or not) from opposition should require the permission of the relevant ministers or party leader (or leaders) to access the papers of the previous administration.

115 Prior to the 2005 and 2010 elections this contact began at the start of the calendar year before the last year in which the general election could be held (January 2005 and January 2009 respectively). With the Fixed-term Parliaments Act 2011 in place this contact may be expected to occur closer to May 2015. Back

116 Cabinet Manual, para 2.21. Back

117 Q115; Fox, written evidence. Back

118 Q117. Back

119 Riddell, para 4. Professor Hazell made a similar point in his written evidence. Back

120 Hazell, written evidence. Back

121 Elvidge, Northern Exposure, p 14. Back

122 For example, "Mid-term review: Coalition remains committed to deficit reduction; Cameron and Clegg insist coalition is "steadfast and united"", The Independent, 7 January 2013. Back

123 Hansard Society, written evidence. Back

124 When section 14 of the Electoral Registration and Administration Act 2013 is commenced, the timing of the dissolution of Parliament will be scheduled to take place 25 working days before the scheduled election (rather than 17). Therefore, the next dissolution is scheduled to be on 8 April 2015, a month before polling day. Back

125 Cabinet Manual, para 2.29. Back

126 Q107. Back