During the recently concluded Conservative leadership contest, the government appeared to be in a holding pattern, taking little or no action of substance until the election of Boris Johnson’s successor. But did the government, which had a substantial parliamentary majority and an electoral mandate, need to act as if it was merely a ‘caretaker’? Robert Hazell explains that the rules around a ‘lame duck’ PM remain fuzzy, and argues that steps must be taken to clarify the position as soon as possible.
Something very strange happened at Westminster over the summer: a government which enjoyed a comfortable working majority of 71 seats was declared to be a caretaker which could not take any major decisions. It was variously accused of being a ‘zombie government’ ‘asleep at the wheel’, and incapable of taking urgent decisions required by the energy crisis. In its defence the government might have responded that as a caretaker it was precluded from taking such decisions. But the Whitehall rules on this are far from clear. So, what are the Whitehall rules about caretaker governments, and the principles underlying them? And given the confusion this summer, do the rules need clarifying or updating?
‘Caretaker government’ is not a term to be found in any UK government guidance. The Cabinet Manual talks instead about ‘restrictions on government activity’. A leadership election in the governing party is not one of the circumstances when the Cabinet Manual says government activity must be restricted. It envisages just three such circumstances when governments are restricted:
…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.Paragraph 2.27.
The period following the mid-term resignation of a Prime Minister is not one of the circumstances when government activity is stated to be restricted, even though the previous page of the Cabinet Manual covers such an eventuality:
Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.Paragraph 2.18.
Underlying principle: a caretaker should not bind the hands of a future government
The underlying principle governing restrictions on government activity is the principle of responsible government: governments are responsible to the House of Commons and derive their political authority from commanding the confidence of the Commons. A government which does not command the confidence of the House of Commons (whether immediately before or after an election or having lost a confidence vote) is potentially an interim government and should not take any actions which might bind the hands of a future government of a different persuasion.
But even if it lacks political authority, an interim government retains the lawful authority to govern: ‘the government retains its responsibility to govern, ministers remain in charge of their departments, and essential business is carried on’ (Cabinet Manual para 2.29). Routine decisions can continue to be made, but the government should avoid:
…taking or announcing major policy decisions; entering into large or contentious procurement contracts or significant long-term commitments; and making some senior public appointments and approving Senior Civil Service appointments.Ibid.
The outgoing Johnson government appeared to be a halfway house. Work on some policies and projects was paused, and official guidance to BEIS civil servants instructed them that:
While the leadership contest is in progress, we don’t expect radical new policy to be introduced unless required… The government will focus on delivering the agenda it has already collectively agreed.
But the government continued to make some senior public appointments and agree long-term procurement contracts (discussed below). While there was no doubt that it continued to command the confidence of parliament, the circumstances of Johnson’s departure did raise doubts whether he was fit to continue, even as a caretaker Prime Minister. Lame duck Prime Ministers can arise for different reasons, a point I return to at the end.
Practical examples: appointments, contracts, policy, legislation
Caretaker governments can still respond to crises and make urgent decisions where necessary: ‘if decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition’ (Cabinet Manual para 2.29). Two examples of urgent decisions can be given from the 2010 general election. During the election campaign airline traffic was seriously disrupted by a volcanic eruption in Iceland: the Transport Secretary Lord (Andrew) Adonis took full charge of deciding when flights could safely be resumed. And over the weekend after the 2010 election the outgoing Chancellor, Alistair Darling, attended the ECOFIN meeting for the first Greek bailout on 9 May 2010, but consulted George Osborne and Vince Cable beforehand.
Without understanding more of the detail, it is hard to know whether Boris Johnson’s announcement of a further £700 million for the proposed nuclear power station at Sizewell C (as part of £1.7 billion available for developing large-scale nuclear power in this parliament) was a breach of the caretaker convention: has it further tied the hands of the next Prime Minister? But there can be less doubt about his controversial appointments of Harry Mount to the House of Lords Appointments Commission, and Baroness (Simone) Finn to the Committee on Standards in Public Life. Another grey area is legislation, on which the Cabinet Manual is silent. The Queen’s Speech in May announced some highly controversial bills, such as the Northern Ireland Protocol Bill, which has since passed all its stages in the House of Commons. Should further debate have been paused until it was known if the new government would support it: which is what happened with former Justice Secretary Dominic Raab’s Bill of Rights Bill?
The caretaker convention in Australia and New Zealand
The caretaker convention in the UK is poorly developed by comparison with other Westminster-style governments. The most obvious difference is the recognition and naming of the convention: the guidance in Australia and New Zealand explicitly talks about the ‘caretaker convention’, ‘caretaker governments’ and ‘caretaker period’, whereas the UK avoids using such terminology. When I queried this during the drafting of the Cabinet Manual in 2011 I was told by the Cabinet Office that ‘caretaker’ had negative connotations in Britain, that a caretaker government would be seen as weak, going back to Winston Churchill’s brief caretaker government in 1945. I do not know whether this view came from officials or ministers; but whatever its origin, it is not helpful to clear guidance that the Cabinet Manual resorts to coy circumlocutions, when outside commentators all use the term caretaker.
It is also not helpful that the UK Cabinet Manual elides guidance on the caretaker convention with restrictions on government announcements during elections, when the two have completely different rationales. The caretaker convention restricts the activity of a government which does not command the confidence of the House of Commons, because it lacks the political authority to govern fully (see above). The ‘purdah’ rules restricting government announcements during elections are intended to prevent the government exploiting its monopoly of government communications for unfair advantage, and the rules apply during local government and devolved elections, as well as general elections.
A third difference in the guidance on the caretaker convention in the UK and other countries is the degree of detail provided. The UK Cabinet Manual devotes just four paragraphs to the convention (paras 2.27 – 2.30), while the New Zealand Cabinet Manual has twenty (paras 6.21 – 6.40). It is true that at election time the UK Cabinet Office issues more detailed guidance, particularly about government communications; but the 2019 election guidance offered no more detail about restrictions on government decisions, save in relation to public appointments. By contrast the 2021 Guidance on Caretaker Conventions in Australia has 19 detailed paragraphs, with separate sections on major policy decisions, significant appointments, major contracts or undertakings, and international negotiations.
But in one respect the UK Cabinet Manual is stronger than its counterparts, in providing for an enforcement mechanism. Paragraph 2.32 provides:
The rules under which an accounting officer may seek a direction from a minister (where the officer has an objection to a proposed course of action on grounds of propriety, regularity or value for money) continue to apply during the three periods described above. The principles set out in paragraphs 2.27–2.29 will be relevant to the application of those rules.
A Permanent Secretary who believes that a minister is acting in breach of the caretaker convention can raise a red flag, and must publicise it:
…the direction, together with the reasoning provided by the accounting officer, should be made public immediately by the department and laid before both Houses at the first opportunity.Paragraph 2.33
Revision of the UK Cabinet Manual
Following the Lords Constitution Committee’s July 2021 report on revision of the Cabinet Manual, the government confirmed in February that it intends to publish an updated version before the end of this parliament. The Commons Public Administration and Constitutional Affairs Committee also has an interest, and in May its chair, William Wragg, wrote to inquire about the timetable, signalling the committee’s intent to scrutinise the new draft. The Constitution Committee’s report has a useful list of suggested updates to the Cabinet Manual in an appendix. What should a new edition of the Cabinet Manual say about the caretaker convention?
First, it should refer in clear terms to the caretaker convention, caretaker governments, and the caretaker period. Second, it should contain a lot more detail, drawing on the Australian and New Zealand guidance mentioned above. Third, it could be helpful to officials to give examples (such as Darling consulting the opposition before attending the ECOFIN meeting), to illustrate how the convention works in practice.
But should a new edition add a fourth circumstance when the caretaker convention applies, namely when the Prime Minister resigns mid-term? The question matters now that it takes a couple of months to select a new party leader, as happened this year with the election of Liz Truss, in 2019 with Boris Johnson, and in 2007 with Gordon Brown. And is this a new ‘lame duck’ convention, or merely an extension of the existing convention? There are arguments going both ways. After the announcement of his resignation in July, Johnson was not a caretaker in the formal sense, as his government had not lost the confidence of the House of Commons: Johnson never lost a confidence motion, indeed he won a confidence vote (called by himself) on 18 July, and his government continued to command a comfortable majority. But commentators inside and outside parliament accepted it was a caretaker government, in the principled sense that it should not take any action which would tie the hands of its successor. Was that because of Johnson’s disgrace; or should the caretaker convention apply to any interim Prime Minister? And is it for the interim PM to declare whether the caretaker convention applies; or can we formulate objective criteria to decide when and how the convention kicks in?
The rules governing a lame duck Prime Minister remain decidedly fuzzy. It would have been a brave Permanent Secretary who formally challenged a ministerial decision this summer on the ground that it tied the hands of the next Prime Minister. But the Cabinet Manual is to be revised, and it cannot duck this issue. At the next Constitution Unit seminar on 6 October three distinguished speakers will address the questions, ‘What are the UK’s caretaker conventions?’ ‘When do they apply?’, and ‘Should the existing conventions be clarified, codified, or reformed?’
This post serves as an introduction to the upcoming Unit seminar, Caretaker Conventions in British Government. The event will take place on 6 October and the panel will include former Cabinet Secretary Lord (Gus) O’Donnell, former Downing Street Chief of Staff Lord (Gavin) Barwell, and Anne Tiernan, Adjunct Professor at the Griffith Business School. Book now.
About the author
Professor Robert Hazell was the founder and first Director of the Constitution Unit.
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