Squatters and caretakers: why the current Cabinet Manual guidance on post-election protocol is insufficient

In the second of a short series of posts on the Constitution Unit blog about government formation after the election, Robert Hazell discusses the weaknesses of the Cabinet Manual in terms of offering guidance on role of the incumbent PM and the caretaker convention.

Caretaker conventions? Nick Lee, CC BY NC SA 2.0

On 23 February I gave evidence to the Political and Constitutional Reform Committee for their inquiry into government formation after the election. We discussed the inadequacy of the guidance in the Cabinet Manual about two things:

Whether there is a duty on the incumbent Prime Minister to remain in office until it is clear who can command confidence in the new Parliament
The caretaker convention, which requires a caretaker government to avoid actions or decisions which would bind the hands of a future government.

Duty on incumbent Prime Minister to remain in office

The draft Cabinet Manual published in December 2010 stated:

‘The incumbent Prime Minister is not expected to resign until it is clear that there is someone else who should be asked to form a government because they are better placed to command the confidence of the House of Commons and that information has been communicated to the Sovereign.’

The Cabinet Manual published in October 2011 softened this to:

‘… it remains a matter for the Prime Minister, as the Sovereign’s principal adviser, to judge the appropriate time at which to resign … Recent 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’ (para 2.10).

The wording was softened because not all the academic experts agreed. This is now well fought territory, with competing views amongst the experts reflected in competing reports from different parliamentary committees. See the two reports of the Lords Constitution Committee (HL 107 March 2011, paras 53-61; and HL 130 Feb 2014, paras 27-31) and two reports from the Political and Constitutional Reform Committee (HC 528 Jan 2011 paras 16-27; HC 734 March 2011 paras 69-74).

The competing views might be labelled realist and idealist. Realists argue that Prime Ministers cannot be prevented from resigning when they want. Idealists argue that PMs have a duty to remain in office until they can confidently advise the Queen whom to appoint in their place. I belong to the idealist school, and hope that previous precedents will in time harden into a clear convention. I defended Gordon Brown when he was accused by the Sun of being a ‘squatter in No 10’ the weekend after the 2010 election, and I will defend David Cameron equally vigorously if (as I expect) he remains in office until it becomes clear who can command confidence in the next Parliament. There are old-fashioned Tory reasons for doing so: the Queen’s business must be carried on, and the Queen must never be without responsible advisers. We must always have a government, because there is always government business to be done, and we never know when disaster may strike. That is why the incumbent PM must remain in office, even if he has lost the election, until he can safely advise the Queen whom to appoint in his place.

The caretaker convention

The Cabinet Manual has been greatly improved by recognising three separate contexts in which the incumbent government will be restricted in what it can do, because it no longer commands the confidence of Parliament (see paras 2.27 to 2.31). These are in the pre-election period, once Parliament has been dissolved; post-election, if there is doubt about who can command confidence in the new Parliament; and mid term, following a successful no confidence motion. But there are three further respects in which the caretaker convention could usefully be clarified and strengthened. These were described in written evidence to the PCRC, and in an excellent article by Petra Schleiter and Valerie Belu in the Political Quarterly.

The first would be to use the terms caretaker convention, and caretaker government. The Cabinet Office is strangely reluctant to use these terms, although they have been readily adopted in Australia and New Zealand. The Cabinet Office appears to think ‘caretaker government’ is a pejorative term, implying a weak government. It is not; it is a technical term, implying a government which has full lawful authority to govern, but has lost (or has yet to acquire) full political authority. In that sense a caretaker government is weaker and more restricted in its decision making than a government which has established the confidence of Parliament; and rightly so.

The second improvement would be to explain the rationale for the caretaker convention, and to separate it from the restrictions on government publicity: the so-called ‘purdah’ rules. Restrictions on government publicity apply during any election (local elections, devolved elections, European elections), and have a different rationale: to prevent the governing party from seeking unfair advantage by issuing good news stories from Westminster. The two sets of rules come together during a general election campaign. 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.

Thirdly, the Cabinet Manual is vague about when the caretaker convention ends. It says:

‘The point at which restrictions on financial or other commitments should come to an end depends upon 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’ (para 2.30)

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 government or not. The situation would be clearer if, instead of the debate on the Queen’s Speech being the first test of confidence in the new Parliament, there were a nomination vote as happens in Scotland and Wales. That is something I will return to in my next blog about government formation after the election.

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Note: This post originally appeared on the Constitution Unit blog and is reposted with permission. It represents the views of the author and not those of Democratic Audit UK or the LSE. Please read our comments policy before posting.

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Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.