"Squatter in Downing Street" and other myths: does Britain need clearer rules around caretaker government?

28 Apr 2015

Caretaker government is meant to reassure the public and the markets that there’s someone in charge in the event of an indecisive election. But what if the rules aren’t clear? Matt Foster takes a look

"Squatter holed up in Number 10,” thundered the front page of The Sun, two days after polls closed in the 2010 election. The source of the paper’s rage? Gordon Brown was still Britain’s prime minister, even after a result that had left Labour with 48 fewer seats than the Tories.

In a country used to the sight of removal vans pulling up on Downing Street in the afternoon following an election, it certainly seemed odd for Brown to still be in office. But 2010 was no ordinary British election. Many constitutional experts say Brown, in spite of the vitriol directed at him, was right to stay on as prime minister and provide continuity during those days in May when it was unclear what the new government would look like.

“There was real pressure on him to resign when actually, the Conservatives and Lib Dems were trying to come to an agreement,” says Dr Stephen Barber, reader in public policy at London South Bank University. “And in fact they didn’t want him to resign because they hadn’t yet got to a position where they could say, ‘This is a government which can command the confidence of parliament’.”

The administration led by Brown in the period after the election was, however, an unusual one: it was what’s known as a "caretaker" government. This term may not be widely understood, but it’s one that Britain may have to get used to as it heads for what could be another indecisive result in May.

“The caretaker period starts at the moment when parliament is dissolved ahead of an election and it ends when the next government is formed,” explains Dr Petra Schleiter, associate professor in politics at St Hilda’s College, Oxford.

“These are constitutionally exceptional periods when a government cannot demonstrate that it has the confidence of parliament. After the election we have a new parliament and we do not know yet which government can command the confidence of that parliament. And that’s why the caretaker period continues after an election until the new government has formed.”

A caretaker government is constrained in what it can do, however, precisely because there is no parliament around to keep an eye on what it gets up to. According to guidance issued by the Cabinet Office in 2011, a government during these exceptional periods “retains its responsibility to govern”, ministers are still in charge of their departments, and “essential business is carried on”.

Ministers are also expected to respond to emergencies and major overseas events. The last time the country experienced caretaker government, then-transport secretary Andrew Adonis took charge of the UK’s response to the Icelandic ash cloud, while chancellor Alistair Darling attended a crucial meeting of Eurozone finance ministers in the days following the election. The same applies this time around to international development secretary Justine Greening's announcement of UK aid for the victims of the Nepal earthquake.

Ministers should, though, observe discretion “in making any decisions of a continuing or long-term character” which could potentially bind their successors. And they must not, according to the guidance, announce any “major” policy decisions, enter into “large” or “contentious” public sector contracts, and should avoid making senior civil service appointments, unless deferring them would be “detrimental to the national interest or wasteful of public money”.

It all sounds relatively straightforward. But Peter Riddell of the Institute for Government fears that we could be heading for a re-run of the “squatter” headlines this time around.

He points out that the civil service still does not use the term “caretaker” when referring to these periods of a constrained government. This, he believes, is partly down to a view in Whitehall that use of the term would give the impression that the administration lacked legitimacy.

“They hate the word caretaker because it implies a provisional government rather than a government with authority. But in practice, they’re having to invent the caretaker convention rules as they go along.

“With good will and good sense people will know when there’s a government in place and not. But there is a potential for ambiguity which could put strains on ministerial and civil service relationships.”

Dr Schleiter agrees. She feels that the limited guidance is a result of Britain’s historically speedy transitions of power, pointing out that, in the period from 1945 to 1994, it took an average of four days for UK governments to be formed, compared to 39 days in the rest of Europe.

But the share of votes won by Britain’s two major parties is in decline. Between them, Labour and the Tories mustered just 65.1 percent of the votes cast in 2010, meaning that coalition and minority administrations, as well as the caretaker administrations that will hold the fort while they are formed, could become the new normal.

Schleiter points the finger at politicians for the lack of clarity over the caretaker convention, saying they can appear unwilling to accept that the rules of the game have changed.

“My sense, talking to officials in the Cabinet Office, is that they have very much taken the initiative in trying to push for clearer rules,” she says.

“And I think the resistance does come from politicians. One possible explanation… is a reluctance to acknowledge publicly that we could be in a position where there isn’t a majority and these rules then become actually relevant.”

That view is shared by Riddell, who says the UK is still living “in a majoritarian culture”, where talking about the implications of an unclear election result is akin to “admitting failure”.

“The politicians will not publicly discuss it,” he says. “Privately, yes. But not publicly. I have been in slightly comical discussions with people in both the main parties, who say, ‘Of course we’re getting a majority. But, you know, just in case.’”

The guidance, set out in 2011 in The Cabinet Manual, is also unclear about whether a prime minister has a duty to remain in office until a new government is formed, or indeed when this constrained period of government actually comes to an end.

Is it when a new prime minister has been appointed by the Queen, or when the ability of a new government to command the confidence of parliament has actually been put to the test in a vote? According to the guidance, it “may often be either”, which, Riddell says, adds to the confusion.

“Last time it was fine because it was quite clear that the Tories and the Lib Dems together had a majority and it was a formal agreement,” he adds. “But if there isn’t the formal agreement it is very uncertain. And potentially it’s quite tricky… When does it end?”

The concern among constitutional experts is not that a lack of proper guidance will result in a despotic caretaker government stuffing senior posts with friends and family. In reality, as Riddell points out, civil servants are “well aware” of what is deemed to be proper behaviour for a caretaker administration.

But there is a fear that failing to properly inform the public about the basic legitimacy of caretaker government – when it begins and ends, what it can and can’t do – could lead to rushed coalition talks and give an inaccurate impression of a rudderless country.

“The importance isn’t about preventing a wayward government from doing awful things, but ensuring that we have a continuity in government and that there is space so a new government can be formed,” South Bank University’s Dr Barber argues.

He points out that during the 2010 period of caretaker government – indeed, during those five days in May – the UK had a “very successful” gilt issue, undermining the idea that lengthy coalition deliberations always lead to market turmoil.

“It all went off very, very calmly,” he says. “So the fact there was a process and there was a clear government in office meant that there was a certain degree of confidence. But Brown was put under huge unnecessary pressure I think to resign when he didn’t even really want to stay on in there, by all accounts.”

It’s not just academics urging greater clarity around caretaker government; MPs have also highlighted the potential for confusion. In one of its last reports of the parliament, the Political and Constitutional Reform Committee (PCRC) made a series of recommendations for how the guidance could be improved.

It called for The Cabinet Manual to properly distinguish between caretaker periods and separate rules on ‘purdah’, which are designed to prevent the government of the day from using the civil service for political ends. “This will give greater clarity to ministers, members of parliament, civil servants and the public about what should and should not happen during these periods,” the committee said.

PCRC also recommended making it clearer that a caretaker government, and the prime minister leading it, has a right to stay in office “until it can be demonstrated that a prospective new administration will have the confidence of the House of Commons”.

During its inquiry, the committee heard from the cabinet secretary, Jeremy Heywood. Heywood told MPs that, in the event of another hung parliament in May, he would expect David Cameron to continue in office until it was clear that another government could win the support of the Commons.

The cabinet secretary’s remarks were immediately interpreted in some parts of the press as preparing the ground for the prime minister to “cling on” to power, headlines that had a distinct echo of the Brown controversy.

Pressed on why the Cabinet Office did not use the term caretaker government, Heywood said that because the current arrangements “seem to work quite well”, it had not been thought necessary “to invent some new technical term”.

But the argument that the current arrangements are adequate is rejected by Schleiter. She highlights how, in 1984, an exchange rate crisis was triggered in New Zealand by unclear caretaker conventions, with the outgoing prime minister refusing to devalue the dollar in a direct contradiction of the new administration’s wishes.

“The lack of caretaker conventions can create moments of great political and economic uncertainty,” she argues.

“After the fact, clearly people understand you’ve got to do something about it. But before? Often people think, ‘now it’s not a big deal, it’s never created a problem yet’. So it’s very easy to push this to the side… I think the government has really missed an opportunity to clarify the rules that actually should apply during these periods.”