Tag Archives: New Zealand

Must a caretaker government be a zombie government?

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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.
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As the House of Commons begins to look at a new employment model for MPs’ staff, we should look to other legislatures to see what we can learn from them

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A Speaker’s Conference has been established to determine if changes need to be made to the employment arrangements for MPs’ staff. How the UK’s other legislatures manage and recruit their staff can help inform that process. As part of a long-term project on MPs’ staff, Rebecca McKee analyses how three of the UK’s legislatures recruit, employ and pay members’ staff.   

While their precise roles vary, legislators almost everywhere require support staff in order to do their job effectively. In the UK, these staff and their employment arrangements have become the focus both of public attention and internal scrutiny, through a series of reviews in Westminster and the devolved parliaments of Scotland and Wales. Later this year, in the House of Commons, the Speaker’s Conference on the employment of Members’ staff will consider other options for staffing arrangements as those currently in place in are only one of a range of possibilities.

This post outlines the current staffing arrangements in three of the UK’s parliaments – the House of Commons, Scottish Parliament and Senedd Cymru – and the key similarities and differences in their employment arrangements. The post covers the key areas of governance, division of roles and salaries and recruitment in each area. It also briefly highlights other possible options from legislatures elsewhere.

Devolved parliaments

Referendums in 1997 paved the way for the creation of the Scottish Parliament and the National Assembly for Wales, the latter being renamed the Senedd Cyrmu in 2020 following the Senedd and Elections (Wales) Act 2020. 

Both of these bodies adopted staffing arrangements similar to those of Westminster, whereby each member employs their own staff within a statutory regulatory framework covering some, but not all, terms and conditions. Each has a designated body responsible for determining the structure and rules on staffing and administering payrolls. The material they produce is a combination of guidance to members – as office holders who employ their staff, there is a balance to be struck between setting rules for best practice and encroaching on the autonomy of the member as the employer – and mandatory policies, such as the rules to be followed when members claim money for staff salaries.

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The evolution of MPs’ staffing arrangements: how did we get here?

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The current system of recruiting and employing MPs’ staff is not one you would design if you were starting from scratch, but before considering an overhaul, it is useful to ask how we got here. In this blogpost Rebecca McKee, who is currently running a project on MPs’ staff, examines the evolution of MPs’ staffing arrangements, providing some context to the current arrangements so we can understand how best to reform them.

Speaker Lindsay Hoyle has called for a Speaker’s Conference to consider a major overhaul of workplace practices in the House of Commons. Under our current system, it is MPs – not the Commons – who recruit and employ their staff, within a framework of regulations set out by the Independent Parliamentary Standards Authority (IPSA). While the devolved legislatures and many other countries have similar arrangements, New Zealand stands out as an example where MPs engage staff employed by the parliamentary authorities. This triangular employment relationship is not without its own problems.

The Parliament’s People Awards in March highlighted some of the brilliant, difficult work these staff do. But for most people outside of the parliamentary bubble these staff, their roles, and their employment arrangements are largely unknown. 

MPs can claim a package of expenses through IPSA to support their work. This includes their own salary as well as expenses to cover the costs of running an office, a place to live in their constituency or London, travelling between parliament and their constituency, and employing staff. Currently, MPs can claim up to £237,430 for staffing. This sum is calculated by IPSA on the basis that it would cover up to four full-time equivalent (FTE) staff with a mix of roles and responsibilities. However MPs, as the legal employer of their staff, can choose to employ any number of people within this budget. The allowance, and the number of staff it is designed to cover, has increased over the years. Figure 1 shows a timeline of the evolution of MPs’ funding alongside other social and political changes.

Figure 1
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Parliaments and the pandemic

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Earlier this year, the Study of Parliament Group published a collection of 25 essays on how parliaments across the UK and further afield have responded to the pandemic. They consider not only aspects of the response in the two Houses at Westminster, but also in Northern Ireland, Scotland, Wales, the Crown Dependencies, New Zealand and other international comparisons, including case studies of the Maldives and Bahrain. Paul Evans summarises some of the themes here.

Executive assertion and parliamentary compliance

As the full scale of the threat posed by COVID-19 began to be recognised, governments wanted to take powers and parliaments were for the most part initially willing to cede them, with little protest when the normal procedures were abrogated. In most cases the legislatures, initially at least, willingly handed over very extensive powers to their governments to make emergency legislation and this was generally done with unusual expedition and, as a result, scant scrutiny.

The problem was perhaps most acute in the area of delegated legislation, resulting in government more or less by decree, as Tom Hickman sets out in his contribution to the volume. At the best of times, the scrutiny of this at Westminster – particularly in the Commons – is open to, and regularly receives, criticism. When actions were first taken to control the pandemic, it was widely suspected that the UK government was deliberately reducing the level of potential parliamentary scrutiny. This suspicion applied to a lesser extent to other executives, which introduced a large number of instruments which took effect in advance of being approved by the legislature.

However, as all the examples, domestic and international, demonstrate, there is an eternal conflict in the procedures underpinning democratic systems between a diversity of voices and a unity of purpose, between efficiency and accountability, between deliberation and decisiveness, and between consent and control. The pandemic, like any national emergency tends to, dramatically highlighted these tensions. In one essay in the volume, Paul Seaward notes that the extent of the use of emergency powers seen in the UK parliament in 2020 is unprecedented in peacetime .

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Braking the law: is there, and should there be, an executive veto over laws made by parliament?

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During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.

What do executive vetoes look like? 

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752). 

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