The Challenge of Periods of Caretaker Government in the UK

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 a confidence motion. 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 United Kingdom (henceforth UK), the rules governing caretaker situations have historically been underspecified. Its constitutional traditions, plurality electoral rules, two-party system and prime ministerial discretion to time elections have in the past limited the frequency and duration of caretaker periods. However, a set of changes, including the slow erosion of the two-party system, recent alterations of the electoral calendar and the new limitations on the Prime Minister's discretion to time early elections introduced by the Fixed-term Parliaments Act (2011) are raising the probability that the country will experience longer and more frequent caretaker periods. As the UK's first fixed-term parliament approaches the end of its final year (the next regular elections are due in May 2015), this article analyses the UK's current caretaker provisions and the debate surrounding them. The article argues that the existing provisions are insufficient to manage the risks and uncertainty inherent in these transitional periods and suggests that important lessons can be learned from the caretaker rules of other countries.

The analysis begins with a comparative overview of the basic rules that are common to caretaker conventions in a range of advanced parliamentary democracies in Section 1. Section 2 then examines the risks attendant on underdeveloped caretaker conventions and piecemeal reform, drawing on an example that is constitutionally similar to the UK—New Zealand—to illustrate the potential consequences. Section 3 examines the trends that are likely to render caretaker periods more common in the UK, and Section 4 explores the adequacy of the UK's current conventions in managing the challenges arising from such periods. The concluding section summarises the argument and recommendations.

1. Caretaker conventions in comparative perspective

The academic literature on caretaker governments is exceptionally sparse. Boston et al. (1998) note that ‘many standard texts on the constitutional practices and procedures of particular democratic states do not mention, or only fleetingly discuss, the nature and frequency of caretaker periods and the proper role of, and constraints upon, caretaker governments’ (p. 630). Standard works on British government such as Mackintosh's (1977)The British Cabinet do not mention the topic. Even the extensive comparative literature on government formation and termination barely touches on the subject.

One of the very few cross-national analyses to address the topic is by Laver and Schepsle (1994) and concludes that of the 14 parliamentary democracies surveyed in the mid-1990s, all address the challenges of caretaker periods in some form. The varying rules converge on two main principles.

The first—and almost universal—principle is that a caretaker government cannot resign. The principle is illustrated by Article 28.11.1 of the Irish Constitution, which specifies that if the Government resigns ‘the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed’. Article 28.11.2 extends the same provision to periods in which the Dáil Éireann is dissolved. In almost all countries, even those that do not recognise any other limitations on the caretaker government's powers (for instance, Ireland, Israel or Germany), the caretaker cabinet is constitutionally unable to resign until its successor has been appointed (German Basic Law, Article 69.3; Israeli Basic Law, Sec. 25). By placing this requirement on ‘acting’, ‘continuing’ or ‘managing’ governments, as they are respectively referred to, parliamentary systems ensure that the country is never without a functioning executive.

The second—and less universally applied—principle requires caretaker governments to restrict themselves to preserving the ‘policy status quo’ (Laver and Schepsle, 1994, p. 292). Some countries view caretaker governments as fully equal to those that enjoy the confidence of parliament, and consequently, these cabinets ‘have not shrunk from using the full powers available to them…with little regard as to their caretaker status’, for example by making politically motivated appointments to statutory boards (Laver, 1996, cited in Boston et al., 1998, p. 634). In other countries the caretaker cabinets' altered constitutional standing and lack of explicit legitimacy is linked to limitations on how they may exercise their executive powers. These caretakers are required to preserve the policy position ‘that was in place when the outgoing government lost its parliamentary basis’ (Laver and Schepsle, 1994, p. 292). The reasons for this are two-fold. First, it is the last policy position that is assured of a democratic mandate; and second, as a change of government might be imminent, it is considered inappropriate to bind the incoming government by committing to significant new initiatives.

Where caretaker periods are short or rare, this objective can be achieved by expecting caretakers to simply defer all significant decisions until the new government takes over. This was historically the case in many Westminster systems, as they shared the constitutional features that made caretaker periods a comparatively uncommon occurrence in the UK. In Australia, for instance, the caretaker conventions once simply specified that ‘no new decisions on matters of major policy should be taken and no appointments to high office should be made [… because] if a question on major policy is being put to the electorate at an election, a government should not make final decisions on that question before the electorate has given its answer’ (Hasluck, 1979, p. 18, cited in Tiernan and Menzies, 2007, p. 16).

In countries such as Belgium or the Netherlands, complex party systems often give rise to prolonged government formation negotiations and lower government durability, increasing the length and frequency of caretaker periods. Such countries typically evolve detailed caretaker conventions. In Belgium, government formation takes an average of 78 days (De Winter, 1995, p. 118), but took a record-breaking 590 days in 2010–2011, a period that coincided with the country's EU presidency (Brans, 2011). When caretaker periods are so long, decisions are bound to arise that cannot simply be deferred. In those cases, caretaker conventions normally require decisions to be taken by inter-party consultation and consensus to ensure the uninterrupted functioning of government. Thus, in the Netherlands, ‘legislation is routinely brought to an end, budgets are introduced, subsidies are handed out and appointments are made’ (Andeweg, 1988, p. 60), with inter-party consultation and cooperation replacing the government's democratic mandate as a basis for action. In Belgium, the unprecedented length of the recent caretaker period also led to a relaxation of the convention that caretaker governments should not enact new legislation. This enabled decisions on urgent matters and international commitments, such as constructing rescue packages to save banks and complying with NATO's decision to send troops to Libya (Bouckaert and Brans, 2012, p. 173). To ensure ‘budgetary discipline and prudence regarding new expenditures’, the caretaker conventions put detailed safeguards in place, such as determining that expenditure decisions should be made at cabinet meetings, rather than at the ministerial level, and introducing more elaborate procedures, thresholds and control mechanisms than would usually apply (Bouckaert and Brans, 2012, p. 174).

In sum, caretaker conventions exist to ensure that a country is never left without a functioning executive, by prohibiting the members of the incumbent government from resigning until their successors have been appointed. Many countries also see fit to limit caretaker governments to the ‘policy status quo’ to ensure that no decisions are made which do not enjoy a secure democratic mandate. In systems with very short caretaker periods, decisions are usually simply deferred until the new government takes office. Where caretaker periods are regularly too long to allow decisions to be deferred, inter-party consultation procedures aimed at consensual decision-making are used to temporarily replace the democratic mandate.

2. The UK's underdeveloped caretaker conventions: causes and an illustration of the risks

In the UK, the caretaker conventions have traditionally been underdeveloped. Since its first-past-the-post electoral system tends to produce single-party majorities, government formation does not typically involve coalition negotiations. Moreover, the UK does not require an investiture vote to empower a new government—a new government takes office from the moment one party is declared to have won the election. This produces very short transition periods: On average, government formation in the UK took just four days in the period from 1945 to 1994, compared to an average of 39 days in other Western European countries (De Winter, 1995, p. 118).

Apart from being shorter, caretaker periods have also been less frequent. Single-party majority governments are more stable than coalitions, raising government durability and decreasing the occurrence of caretaker periods. Moreover, when governments lose the confidence of parliament, prime ministers have typically used their discretion to call a general election, which obviates the need for complex government formation negotiations in the middle of the parliamentary term. As a result, caretaker periods have been relatively short and rare, so that there have been limited opportunities for contentious issues to arise, and thus little incentive to develop detailed caretaker conventions.

The risks to which underdeveloped caretaker conventions can give rise are well illustrated by New Zealand—a Westminster democracy that shares key constitutional features with the UK. Its caretaker conventions were similarly sparsely specified, and as a result, the country proved vulnerable to problems when the conventions unexpectedly became a point of contention in 1984.

In 1984, the National Party government, which had been in office for almost nine years, lost the election to Labour. The election campaign had generated the widespread expectation that a Labour government would devalue the currency, which put significant pressure on the New Zealand dollar. The country faced a serious exchange rate crisis, and the day after the election, the Reserve Bank was forced to suspend all foreign currency exchange dealings in order to halt a run on the dollar. It advised that urgent action was required to devalue the New Zealand dollar. However, the new government could not be sworn in until after the return of the writs, at least 10 days later, and the outgoing government, acting in a caretaker capacity under Sir Robert Muldoon, disagreed with the Reserve Bank's advice. Muldoon brought the crisis to a head by refusing to accede to the Bank's and the incoming government's views on the need to devalue the dollar, despite the incoming government's evident democratic mandate. Not until three days after the election did Muldoon eventually yield to pressure from senior colleagues, and agreed to act on the advice of the incoming government (Boston et al., 1998, p. 635). As a result of this crisis, a convention was formulated that the incoming government should be consulted ‘on any matter of such great constitutional, economic or other significance that it cannot be delayed until the new government formally takes office—even if the outgoing government disagrees with the course of action proposed.’¹

Further impetus to improve New Zealand's caretaker conventions resulted when the general election of 1993 returned a hung parliament in which no party was in a privileged position to form the next government. Because the identity of the incoming government was not known, the existing convention (that the incoming government should be consulted) failed to address the situation at hand. To preclude another crisis, the Cabinet Office immediately published a circular that proposed new guidelines: where the identity of the new government is not known, the caretaker should refrain from significant decisions and where an urgent decision is required, it should be handled either by interim measures that do not require a long-term commitment, or after consultation with opposition party leaders.

Finally, the newly-elected parliament (1993–1996) made further changes to the caretaker conventions as NewZealand prepared to change its electoral rules from a plurality system to a mixed-member proportional (MMP) system. The imminent switch to MMP raised the probability of greater political uncertainty and longer caretaker periods. To manage the risks arising from such situations, parliament integrated the 1993 circular into a broader set of caretaker conventions that comprehensively detail the responsibilities of government and civil servants during caretaker periods. Moreover, the conventions are subject to an on-going process of review to ensure their continued relevance.

The example of New Zealand illustrates that a lack of adequate caretaker conventions can generate serious problems. The UK, like other Westminster systems, is particularly vulnerable to such problems because its constitution and party system have in the past minimised the occurrence of caretaker periods and the need to regulate them. Hence the caretaker conventions remained underdeveloped. The model of reform followed by New Zealand was reactive and piecemeal, as the conventions were developed and refined in response to actual crises, as in 1984, or when the constitutional environment shifted so that problems became clearly foreseeable, as in 1993. The UK drafted its first caretaker conventions when it became apparent that the 2010 election might culminate in a hung parliament. Much is to be gained by developing these conventions pro-actively, and before the next challenging situation arises, by applying some of the lessons that can be drawn from the reform process in other countries.

The next section examines the factors that are likely to render caretaker periods more common in the UK.

3. The rising probability of caretaker periods in the UK

The UK has experienced significant changes in its constitutional and electoral environment that are likely to affect caretaker periods. Three trends specifically will tend to increase the frequency and duration of transitional periods between governments: changes to the rules that govern the election timetable, new restrictions on the executive imposed by the Fixed-term Parliaments Act (2011), and changes in electoral behaviour (Schleiter and Belu, 2014).

3.1 Extended election timetable

Recent legislation has introduced a range of changes to the electoral timetable. The Electoral Registration and Administration Act (2013) extends the length of the general election timetable from 17 to 25 days, excluding weekends and bank holidays.² Moreover, following recommendations by the Modernisation Committee, a further 12 days were required to pass between the election and the first session of the new parliament in 2010, double the time that had passed after the three previous elections. 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 period, may be considerably greater than for any other election in modern times’ (House of Lords Select Committee on the Constitution, 2014, pp. 101–102, evidence submitted by Fox). According to Fox's calculations, the 2015 general election could engender a prolonged caretaker period of 51 days—the longest period between dissolution and the first session of the new parliament since 1924, and 15 days longer than in 2010.

3.2 The Fixed-term Parliaments Act 2011

In addition, the UK's constitutional framework has been altered by the Fixed-term Parliaments Act 2011, which imposes constraints on the Prime Minister's discretion to call early elections. A Prime Minister is now no longer permitted to dissolve parliament at will. Instead, dissolution can only occur if a two-thirds majority in parliament votes for dissolution or if a no-confidence motion in the government is passed and parliament fails to endorse a new government within 14 days. Thus up to 14 days could be added to the lengthened caretaker periods that result from the new electoral timetable.

The situation is even more complicated if a government chooses to resign during the parliamentary term for reasons other than a no-confidence vote, for instance following a major legislative defeat or the collapse of a coalition. Neither of these events would trigger parliamentary dissolution according to the Act, and there is no constitutional limit to how long government formation negotiations may last, and no automatic dissolution if they are unsuccessful. Instead, parliament would have to dissolve itself, and if the required two-thirds majority for an early dissolution cannot be reached, caretaker periods following mid-term cabinet failures could potentially be lengthy.

Moreover, the Fixed-term Parliaments Act could have knock-on effects that are as yet underappreciated (Schleiter and Issar, 2014, forthcoming). The Act deprives Prime Ministers of a powerful bargaining tool when confronted with unruly backbenchers or coalition partners: they can no longer threaten to call elections in the face of dissent. This may decrease the government's stability and has the potential to raise the frequency with which caretaker periods occur.

3.3 Electoral trends

Secular electoral trends also make caretaker periods increasingly likely. The 2010 general election produced the UK's second hung parliament and its first coalition since World War II. Longitudinal data suggest that both the hung parliament and the formation of a coalition government were the results of long-term electoral trends that also raise the probability of longer caretaker periods (evidence submitted by Barker to the House of Lords Select Committee on the Constitution, 2014, pp. 16–18; Curtice, 2010).

Partisan de-alignment has steadily eroded the vote share accruing to the Conservative and Labour parties in the post-war era. In the 1955 general election, the two largest parties attained a combined vote share of 96.1%, and a combined seat share of 98.8%. A mere eight seats went to MPs from other parties: six to Liberals, and two to Sinn Féin. By 2010, the electoral dominance of the two parties had been significantly eroded—their joint vote share was 65.1% and their seat share 86.8%, the lowest level since 1922. A total of 86 seats went to parties other than the Conservatives and Labour.

In addition, the increasing geographical concentration of the vote for the different parties has had the effect of increasing the parliamentary representation of third parties while diminishing the seat share bonus of the largest party: in 2010 the Liberal Democrats gained 21.6% of the vote (compared to 23% in 1983), but won twice as many seats (57 seats, 8.8%) as in 1983. Since their support has become increasingly geographically concentrated, the first-past-the-post electoral system is less effective at denying them representation. Together with the relatively concentrated support won by nationalist and the Northern Irish parties, this trend has seen the last three elections produce parliaments with 80–90 third-party MPs, which raises the probability of a hung parliament (Curtice, 2010, p. 629).

At the same time, the increasing geographical concentration of the vote has reduced the seat share bonus of the largest party. Single member plurality systems award disproportionally more seats to the largest party than to the party that comes second (Taagepera, 1973, p. 257). The disproportionality rises when electoral contests are closely fought between the two largest parties and small vote share differences determine which party secures a seat. Thus the degree to which the electoral system will exaggerate the lead of the largest party over the second party depends on how many constituencies are closely fought (i.e. marginal) between these two parties (Curtice, 2010, p. 629, see also Kendall and Stuart, 1951). From 1955 to 1970, the number of marginal seats averaged 159 so that small leads were exaggerated into large seat share difference. Thus in 1955 a 3% Conservative vote share lead over Labour translated into an 11% lead in seat share. Beginning in 1955, each successive election saw Conservative support become increasingly concentrated in the South and Midlands of England, and in rural areas. At the same time Labour performed increasingly better in Scotland, the North of England and urban constituencies. ‘As Britain diverged politically, so fewer seats were left where both parties had a chance of winning’ (Curtice, 2010, p. 631). In February 1974, the number of marginal seats had dropped to 119, and by 2010 it was just 85. Unless a significant reversal of these trends occurs, hung parliaments will become more frequent occurrences.

In sum, the lengthening electoral timetable, the Fixed-term Parliaments Act and electoral trends jointly raise the risk that the UK will experience caretaker periods more frequently, and for longer stretches of time.

4. Managing the risks of caretaker periods in the UK

As the UK general election of 2010 approached, opinion polls generated strong expectations of a hung parliament. In preparation, Prime Minister Gordon Brown asked the Cabinet Secretary to lead efforts to ‘consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.’³ The result was a first draft of caretaker conventions in the UK, which formed part of the draft Cabinet Manual.

4.1 Controversy during the 2010 caretaker period

When the 2010 general election returned a hung parliament, the UK operated under the set of draft caretaker conventions that had resulted from Gordon Brown's request. The conventions had not yet been adopted, lacked official status and were poorly understood by the press and the public. This had adverse repercussions and gave rise to political risks (Schleiter and Belu, 2014).

The adverse consequences became swiftly apparent. Since Labour had lost its majority, the media and the public seemed to expect that Gordon Brown and his government would resign immediately (as was predicted in the hearings of the House of Commons Justice Committee, 2010, Q 31). When Mr Brown remained in office pending the completion of the coalition talks, controversy erupted and he was widely decried as the ‘squatter in Downing Street.’⁴ There seemed to be little understanding of the government's caretaker status.

The potential risks were also considerable. At the time, the UK was in the midst of the economic crisis and decisions arose during the caretaker period, which could not be postponed. Thus, two days after the general election, Mr Darling, the Chancellor of the Exchequer, attended an extraordinary meeting of European finance ministers, which was set to adopt far-reaching new powers for the Commission and its fellow bodies.⁵ In the event, Mr Darling chose to follow the freshly drafted caretaker conventions that were still unapproved. He consulted with the Conservative Party and the Liberal Democrats before the meeting, but technically there were no official restrictions preventing him from making substantial commitments on behalf of the incoming government, possibly in direct contradiction to its policy position.

4.2 The current UK caretaker conventions

The final caretaker conventions were only published in October 2011, long after the election, as part of the final version of the Cabinet Manual agreed to by the Coalition. 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’ (Cabinet Manual, 2011, § 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’ (Ibid, § 2.29). The Manual further states, ‘[i]f decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition’ (Ibid, § 2.29).

In their current form, however, these conventions still have a number of lacunae which leave the UK vulnerable to crisis and controversy: (i) they do not clarify effectively the normative basis for limitations on government power during caretaker periods; (ii) they do not stipulate unequivocally that a caretaker government cannot resign until its successor has been formed and do therefore not fulfil the minimal function of all caretaker conventions—to secure the continuing existence of a government at all times; (iii) they do not clearly specify when caretaker situations terminate and (iv) they lack clarity in specifying the nature of restrictions on the executive during caretaker periods. Finally, there is little public understanding of the caretaker conventions. Each of these concerns is discussed in more detail below.

4.3 Uncertainty about the normative justification for limitations on government during caretaker periods

Two normative concerns—electoral fairness and the need to regulate government during periods when no parliamentary basis for it can be demonstrated—are conflated in the UK debate about caretaker periods, as well as in the current rules listed under the heading of ‘restrictions on government activity’ in the Cabinet Manual. Both types of restrictions come into effect during a general election campaign, but otherwise there is no connection between their respective normative justifications.

Rules to ensure electoral fairness (also referred to as ‘purdah’ rules in the UK, see House of Commons Library, 2013) are designed to ensure a level playing field during elections. They impose restrictions on government publicity, activity and the government's relationship with the civil service, to prevent the governing party from drawing unfair advantage from incumbency during the election campaign. They come into force with the announcement of any election, whether general, local, devolved or European, and end with the closing of the polls (i.e. they justify the ‘restrictions on government activity’ in ‘the period immediately preceding an election’).

Caretaker conventions have a different normative justification. Their purpose is to enable and to limit government during transitional periods from the point at which the incumbent cabinet has lost or cannot demonstrate the support of parliament to the formation of the next regular cabinet. These are constitutionally exceptional periods in parliamentary democracies in which governments otherwise derive their power and legitimacy from the confidence of parliament. Caretaker conventions exist to permit limited government until the next regular administration can be formed. Their function is to protect the national interest and to ensure that there is always an executive to continue ‘daily administrative management, custody of ongoing concerns and handling of urgent matters and international commitments’ (Bouckaert and Brans, 2012, p. 174).

All drafts of the Cabinet Manual and much of the debate surrounding it conflate these two types of rules by presenting caretaker conventions as a post-election extension of the ‘purdah’ or pre-election rules, in the event of a hung parliament. For instance, when Sir Gus O'Donnell proposed the formulation of the caretaker rules he suggested that ‘the rules covering the election period would be extended beyond the election, to the post-election period when we do not have a stable government’ (House of Commons Justice Committee, 2010, Q87). Similarly, Ruth Fox, witness to the House of Lords Select Committee on the Constitution (hereafter HLCC), refers to the period under question as the ‘caretaker/purdah period’ (evidence to HLCC 2014, e.g. p. 101).

The language of the Cabinet Manual has not been revised, despite repeated suggestions to adopt the terminology that is already established in other Westminster systems (see evidence to HLCC 2014, Q19; and written evidence by Hazell to the Political and Constitutional Reform Committee 2014). As a result there seems to be considerable uncertainty and a widespread lack of understanding of the normative rationale for caretaker restrictions on the government. This was reflected, for instance, in the House of Commons Justice Committee's (hereafter HCJC) deliberations on the Cabinet Manual (HCJC 2010, e.g. Q104), in which witnesses questioned the appropriateness of extending the ‘purdah’ rules to the post-election period, since it is no longer possible for the incumbent government to draw an unfair electoral advantage from its position once the polls have closed.

Clarification of this aspect of the conventions is important to avoid disagreement about the justification for limiting the powers of governments during caretaker periods. A change to the Cabinet Manual that clearly separates the two types of rules—those pertaining to electoral fairness, and those pertaining to caretaker periods—and states that their respective normative justifications would clarify a central aspect of the debate and remove an unhelpful source of controversy.

4.4 Ensuring that there is always a government

The central and minimal purpose of caretaker conventions is to ensure that a country is not left without an acting government. In a parliamentary democracy like the UK, ‘[t]he Prime Minister […] holds that position by virtue of his or her ability to command the confidence of the House of Commons’ (Cabinet Manual, 2011, § 3.1), and a government that fails to do so is expected to resign. Caretaker periods contradict this ordinary constitutional requirement, and the primary role of caretaker conventions is thus to legitimise government during such periods, and to ensure that the incumbent caretaker cabinet does not resign before the next regular government is formed. However, the inclusion of such a clause in the new Cabinet Manual has proved to be a point of contention, in part, because the Manual is expected to record precedent and convention instead of setting new rules.

The December 2010 draft version of the Cabinet Manual attracted criticism for being over-prescriptive because it stipulated that an 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’ (Cabinet Manual, 2010, § 50). The first report of the HLCC on the Cabinet Manual concluded that an incumbent Prime Minister has no duty to remain in office until it is clear what form an alternative government might take (HLCC 2011, § 61, emphasis added).

The current version of the Cabinet Manual responded to these criticisms by reflecting the uncertainty, stating ‘[w]here an election does not result in an overall majority for a single party […] an incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative’ (Cabinet Manual, 2011, § 2.12, emphasis added). The manual further notes that ‘[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’ (Ibid, § 2.10, emphasis added).

The most recent report of the HLCC on the Cabinet Manual, published in February 2014, revises this opinion and states ‘[w]hile there is no established duty on an incumbent Prime Minister after a hung parliament to remain in office until a new government can be formed, precedents have created an expectation that the Prime Minister will remain until a successor can be identified. The Cabinet Manual should emphasize this expectation and it is important that the public and the media be informed of the reasons underlying it’ (HLCC 2014, § 31, emphasis added).

While these developments document a growing desire to reduce the ambiguity of the current conventions, there are clear benefits in going even further and establishing an unambiguous rule that there must always a government during transition periods. This requirement could be enshrined in the Cabinet Manual by establishing a duty for the Prime Minister and government to remain in office until it is clear who can command confidence in the new Parliament, an argument repeatedly made by witnesses to the Political and Constitutional Reform Committee (hereafter PCRC) (e.g. 2011, Ev 42 § 2.7, or most recently in the committee's on-going investigation into the Cabinet Manual—PCRC 2014—also in written evidence submitted by Hazell and Yong) and by various witnesses to the HLCC (2011, e.g. Lords Armstrong, Butler, Wilson and Turnbull). Clear expectations about the identity of the government during caretaker periods are critical in managing political and economic uncertainty during those periods effectively. Consider the following counterfactual scenario: had Gordon Brown and his government resigned immediately after the 2010 election, before the coalition formed, it is not clear who would have represented the UK the day after the election in the emergency teleconference to address the economic crisis called by the US Treasury Secretary Tim Geithner with other G7 finance ministers, or who would have replaced Mr Darling at the extraordinary meeting of European finance ministers the following day. The resulting uncertainty might not just have damaged UK interests but also the wider efforts to manage the economic crisis.

In brief, there are benefits to be gained from following the example of other parliamentary democracies and affirming the first principle of all caretaker conventions: a caretaker government cannot resign until an alternative government is ready to take office because the country cannot be left without a functioning executive. Or ‘[i]n old Tory language, the Queen must never be without responsible advisers, and the Queen's business must be carried on’ (PCRC 2011, Ev. 43 by Hazell). If the Cabinet Manual is not the appropriate vehicle to introduce such an innovation, it could be securely established by statutory legislation.

4.5 The termination of caretaker periods

There is a similar lack of clarity in the current caretaker conventions 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 (HCJC, 2010, Q100–3). As the HCJC 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, so as to provide political actors with a clear understanding of the rules and restrictions that are in effect.

4.6 Clarity concerning the nature of restrictions on the executive

The final area in which lacunae characterise the current caretaker conventions concerns the details of 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, such as the hypothetical four weeks of government formation negotiations that were under consideration by the HCJC's hearings on the Cabinet Manual, 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 (Tiernan and Menzies, 2007, p. 72). To this end, it is important that 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 at a time when the attention and resources of political parties are focussed on government formation negotiations. Some Westminster systems have chosen ‘definitions revolving around the monetary value of the contract’ (Ibid, p. 37), for example, and ‘[m]any have codified the level of appointment [permitted without consultation during the caretaker period] with precision’ (Ibid, p. 36). As the caretaker conventions are embedded within the Cabinet Manual, it is important that its review process takes these considerations into account, for instance by opening proposed revisions to a wider process of consultation that includes parliamentary committees which can ‘check that the Manual commands cross-party support’ (PCRC 2011, Ev. 44 by Hazell).

Similarly critical are appropriate protocols for the consultation process between the government and the opposition, detailing by whom and under what rules the consultations are to be conducted (Davis et al., 2001, pp. 19–21). The problems that arose in other Westminster systems are informative. For example, the situation in the Australian state of Victoria following the 1999 election created significant tensions for public servants, who were required to be apolitical, but found themselves working with the advisers of the opposition (who were not bound by the caretaker conventions) and shadow ministers, whose objectives were overtly political. The resulting complications required urgent contracts to be ‘put on hold while appropriate post-election arrangements were determined and negotiated’ (Ibid, p. 19). Another question that requires clarification is ‘what degree of agreement is required amongst the parties before a decision can be taken’ (Boston et al., 1998, p. 641).

4.7 The public and the caretaker conventions—enforcement and management of uncertainty

In order to ensure the effectiveness of caretaker conventions, their breach must attract political sanctions. These sanctions arise largely from the reputational consequences of breaching the conventions given media scrutiny and public opinion (Tiernan and Menzies, 2007, p. 10). Indeed, in other Westminster systems, ‘[o]ngoing media and public scrutiny of political behaviour ensures that breaches are well-publicised by journalists, commentators and the Opposition’ (Ibid.). However, in the UK it is at present questionable whether the media and public opinion would be able to fulfil this role because the caretaker conventions have barely penetrated the public discourse. As Prof. Cram testified before the PCRC (2014, Q6), a search of various media organisations' websites revealed that the Cabinet Manual is mentioned ‘very rarely indeed’. Since the Cabinet Manual is the document enshrining the caretaker conventions, its low visibility presents problems not only for the enforcement of the caretaker conventions, but also for their role in limiting uncertainty during transitional periods.

A public information campaign regarding the conventions would have benefits in a number of respects. First, it would ensure that the mechanism by which breaches are sanctioned could operate effectively, but in addition it could also help to control the political and economic uncertainty generated during caretaker periods and its adverse effects. Thus, it could help to prevent a recurrence of the ‘squatter in Downing Street’ controversy. Moreover, it might reduce the ‘unwisely frantic’ (Lord Butler of Brockwell, HCJC 2010, Q9) pace of the government formation negotiations, which is driven by ‘tremendous public and media pressure’ (Ibid, Q3), allowing for more carefully negotiated coalition agreements. Lastly, it could mitigate the risk of financial and stock market volatility that any extended period of uncertainty over the identity of a future government could provoke (see witness statements, Ibid, Q5). Clearly, public, media and market reactions to caretaker periods are conditioned by an understanding of the transition processes at work. Expectations can be managed. Indeed, other countries regularly manage extended government formation negotiations and the attendant caretaker periods, without provoking political or economic crises.

In short, the UK stands to gain significantly from taking the opportunity to pre-empt the problems that have generated disruption and uncertainty during caretaker periods in other countries, by attending to these concerns before controversies arise.

5. Conclusions

This article has examined caretaker periods and their attendant challenges to parliamentary democracy. It has charted some of the cross-national variation in caretaker conventions and noted that the rules governing caretaker situations in the UK have historically been underspecified. In the absence of adequate caretaker conventions, transitional periods can be problematic and crisis-prone. The central argument of the article is that even the UK's revised 2011 conventions offer inadequate guidance during caretaker periods. At the same time, the changing constitutional traditions and electoral environment have raised the probability that the UK will experience such periods more frequently and for longer spans of time.

The analysis of the caretaker rules detailed above suggests that four changes to the UK's current conventions are needed to ensure effective government during caretaker periods and to manage the uncertainty inherent in such situations: the caretaker conventions must at a minimum ensure that the country is not without government; the beginning and end points of caretaker periods should be clearly defined; and parties should consider working towards shared understandings of the restrictions imposed by the caretaker principles and decide upon mutually agreed rules and procedures by which to uphold them. Instead of waiting for circumstances to raise these questions—most likely at a time when parties are primarily concerned with government formation negotiations—the UK could pre-empt much controversy by settling these issues in advance.

The next regular election in the UK is due in 2015 and polls indicate that another hung parliament may result. This is an appropriate moment to tackle the challenge of improving and effectively publicising the rules governing caretaker periods. Significant risk and controversy can be averted by ensuring that politicians, the media, markets and public understand that adequate caretaker conventions will ensure that the normal processes of government can continue largely unhampered.

Funding

This work was supported by the British Academy (Grant Reference Number CTRYFG0), the John Fell OUP Research Fund (Project Reference 121/476) and Higher Education Innovation Funding for Knowledge Exchange (DPIR Feb 2014).

Acknowledgements

We are grateful for comments received from the editor and the anonymous referees and thank Oonagh Gay and the Parliament and Constitution Centre of the House of Commons Library for useful suggestions.

References