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Caretaker periods and their attendant challenges are universal to parliamentary democracies. The government’s mandate to exercise its executive powers stems from its ability to command the confidence of parliament. However, there are points in every parliament’s lifecycle when no government can lay claim to such support - between parliamentary dissolution and a general election; after a general election and before the new government is formed; or when an incumbent government loses the confidence of parliament. During such periods a government must be in place. But in the absence of parliamentary confidence these cabinets lack democratic legitimacy, which can pose significant problems when they are called upon to make controversial and consequential decisions. For this reason, most parliamentary democracies have developed rules to govern these situations, often in the form of constitutional laws.
In the UK, the rules governing caretaker situations have historically been underspecified. As long as elections produced single party parliamentary majorities, this posed no particular problems because government formation did not typically require complex coalition negotiations. Transition periods were short: on average, government formation in the UK took just four days in the period from 1945 to 1994, compared to an average of thirty-nine days for the rest of Western Europe. However, the recently lengthened election timetable, and polls that predict a more fragmented parliament, make clear that the UK is likely to experience a more extended caretaker period in May 2015.
Inadequate caretaker conventions give rise to considerable costs and risks. As the ‘squatter in Downing Street’ episode illustrates, they can generate high-profile political controversy. As a result, parties were forced into unwisely frantic government negotiations in 2010, under tremendous public and media pressure. Moreover, poorly specified caretaker conventions can cause serious economic instability when they fail to ensure that the normal process of government continues largely unhampered. In New Zealand in 1984, for instance, a serious exchange rate crisis was triggered by unclear caretaker conventions in the context of fundamental disagreements between the outgoing prime minister, Sir Robert Muldoon, and the incoming Labour administration over the country’s exchange rate policy. The Reserve Bank was forced to suspend all currency exchange dealings to halt a run on the dollar.
Two developments have increased the UK’s vulnerability to crises during caretaker situations. First, the electoral timetable has been lengthened considerably. Following recommendations by the Modernisation Committee, twelve days were added to the period between the election and the first session of the new parliament in 2010, doubling the length of that period compared to the three previous elections. The Electoral Registration and Administration Act 2013 further extends the length of the general election timetable from seventeen to twenty-five days, excluding weekends and bank holidays. The anticipated cumulative effect of these changes is that ‘[t]he length of time between dissolution and the formation of the next government in 2015, and therefore the length of the caretaker/purdah period, may be considerably greater than for any other election in modern times’. (Remark made by Ruth Fox in her written evidence to House of Lords Library, LLN 2011/002: Constitutional and Parliamentary Effect of Coalition Government, 2011)
Second, these institutional changes are compounded by secular electoral trends that are making hung parliaments and the need for coalition negotiations increasingly likely. The 2010 general elections produced the UK’s second hung parliament and its first coalition since the Second World War. Longitudinal data suggest that partisan de-alignment has steadily eroded the vote share accruing to the Conservative and Labour parties in the postwar era. In the 1955 general election, the two largest parties attained a combined vote share of 96.1 per cent. A mere 8 seats went to MPs from other parties. By 2010, the electoral dominance of the two parties had been significantly eroded—their joint vote share was 65.1 per cent and fully 86 seats went to parties other than the Conservatives and Labour. Pollsters predict another hung parliament in May this year, which is also likely to be characterized by a more complex constellation of political forces than its predecessor.
The UK’s caretaker conventions and their shortcomings
The UK’s current caretaker conventions are part of the Cabinet Manual (2011). They recognise three situations in which ‘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’ (§2.27). In all three situations, the same ‘restrictions on government activity’ apply. The government is expected to defer activity such as ‘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, provided that such postponement would not be detrimental to the national interest or wasteful of public money’. The Manual further states, ‘[i]f decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition’ (§2.29).
However, these conventions still leave the UK vulnerable to crisis and controversy because of three major shortcomings which could easily be addressed.
First, the current rules do not fulfil the central and minimal purpose of caretaker conventions, which is to ensure that the country is never without an acting government. A key gap in the current UK caretaker conventions is the lack of provisions to prevent a caretaker government from resigning. The Cabinet Manual merely notes ‘[r]ecent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention’ (§2.10). To date, therefore, there is no duty of the incumbent government to remain in office during caretaker periods until the next cabinet is formed.
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. Clear expectations about the identity of the government during caretaker periods are critical in effectively managing political and economic uncertainty during those periods. The UK should therefore follow the example of other parliamentary democracies and affirm the first principle of all caretaker conventions: a caretaker government cannot resign until an alternative government has taken office because the country cannot be left without a functioning executive. If the Cabinet Manual is not the appropriate vehicle to introduce such an innovation, it could be securely established by legislation.
Second, the current conventions lack clarity about the termination of caretaker periods. The Cabinet Manual states that ‘[t]he point at which the restrictions on financial and other commitments should come to an end 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’ (§2.30). A central feature of this guidance is its indeterminacy. In the absence of an investiture vote, there is no clear consensus as to when a government’s ability to command parliamentary support can be considered to have been tested. As the House of Commons Justice Committee concluded, the period in which the caretaker conventions apply should be carefully defined, and the fact that a caretaker period has commenced or concluded should be explicitly announced. Greater clarity would have the merit of helping to manage public expectations and market reactions during transitional periods, and would provide political actors with a clear understanding of the rules and restrictions that are in effect.
Third, the current caretaker conventions do not adequately detail the restrictions on government activity during caretaker periods. If the UK is to be well prepared for the possibility of a lengthy post-election caretaker period, more attention has to be given to the practicalities of applying the caretaker conventions. Caretaker conventions are self-policed; they are thus only effective in so far as all major parties agree in their interpretation of the general principles and accept cross-partisan responsibility for their maintenance and observance. To this end, it is important that all parties understand and agree on shared definitions of what constitutes ‘major policy decisions’, ‘large/contentious procurement contracts’ or relevant appointments, before these issues become contentious. Some Westminster systems have chosen ‘definitions revolving around the monetary value of the contract’, for example, and ‘many have codified the level of appointment [permitted without consultation during the caretaker period] with precision’ (A. Tiernan and J. Menzies (2008). Caretaker Conventions in Australasia. Canberra, ANU E Press, 2008, pp. 36–7.). Similarly critical are appropriate protocols for the consultation process between the government and the opposition, should they become necessary. One central question that requires clarification is the degree of agreement required between parties before decisions can be taken. Another question that ought to be clarified is who should participate in the consultations.
In sum, the UK’s caretaker conventions are inadequate and the price that the country may pay for the political and economic uncertainty that these rules may trigger is potentially high. The polls indicate that the UK is set to elect another hung parliament in May 2015. Policy makers should act now to develop more adequate caretaker rules. Moreover, they must ensure that the media, the markets and the public understand that adequate conventions allow the normal processes of government to continue largely unhampered while a new government is negotiated.