06 Nov 2019

Parliament must be dissolved 25 working days before polling day, meaning that Parliament will be dissolved on Wednesday 6 November 2019.

The pre-election period before general elections is not regulated by statute, but governed by conventions based largely on the Civil Service Code.

The Cabinet Office's 'General Election Guidance 2019' dated 4 November 2019 (2019 Guidance) has now been published and the Prime Minister (PM) has written to ministerial colleagues providing guidance on the conduct of government during the pre-election period. It states that it "(…) takes effect from 00:01 on Wednesday 6 November 2019 at which point the 'election period' begins."

The announcement of a general election on 12 December 2019 (GE 2019) will disrupt the current Parliament's legislative activity and will place a restriction on implementing some of the key policies of the current government. 

The 2019 Guidance makes it clear that it applies to Ministers, the Civil Service, departmental and non-departmental public bodies (NDPBs) and other arm’s length bodies (ALBs) on their role and conduct during election and referendum campaigns.

Existing policies and projects

The 2019 Guidance contains a few revisions. The 2017 Guidance stated that, "Essential business must be carried on." In the 2019 Guidance this has been revised to "Essential business (which includes routine business necessary to ensure the continued smooth functioning of government and public services) must be allowed to continue."

The following wording remains unchanged in the 2019 Guidance: "Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money."

High Speed 2 (HS2) is one of the most controversial recent infrastructure projects. The Financial Times has already reported (3.11.19) that a decision on the future of the UK's HighSpeed 2 railway line is now very unlikely to be issued before the election. The government was also due to publish a White Paper to implement the findings of the Williams Rail Review and progress the High Speed 2 Phase 2a Bill. The 14 October Queen's Speech supporting material stated that proposals on railway reform would be brought forward. The publication of the long awaited government response to the National Infrastructure Commission's National Infrastructure Assessment was also promised as part of the Queen's Speech. Any progress on these matters will now be delayed until after the election and will be subject to the outcome of the election.

On 25 October it was reported in the planning press that Housing secretary Robert Jenrick had revealed that the forthcoming 'Accelerated Planning Green Paper' had been upgraded to a 'White Paper' and that the document would deliver "radical reform" of the planning system. A 'Green paper' usually presents a range of ideas and is meant to invite interested parties to contribute views and information, in other words it is understood that it is a consultation document. It may be followed by a 'White Paper' which is understood to refer to an official set of proposals and generally to contain major policy proposals. The proper description of these papers however is that they are 'parliamentary papers' a term used to describe a document which is laid before Parliament. Sub-categories of these include numbered 'Command Papers' (CPs)  which are reserved for major policy proposals. Given the Housing secretary's reported indications that the anticipated housing paper had been upgraded to one containing major policy proposals it is likely that this too will be delayed until after the election. 

The impact on emerging government policy, legislation and decision-making

Consultations

The 2019 Guidance advises that, "in general, new public consultations should not be launched during the election period unless there are exceptional circumstances where launching a consultation is considered essential. The example given is safeguarding public health. 

If a consultation is on-going at the time the 2019 Guidance comes into effect the it should continue as normal. The 2019 Guidance also states, "However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention." This it is confirmed "This effectively means a ban on publicity for those consultations that are still in process." 

The 2019 Guidance acknowledges that the restrictions may be detrimental to a consultation and advises that departments to decide on steps to make up for that deficiency, for example, by prolonging the consultation period; and putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister). However, the 2019 Guidance notes that departments will need to take into account the circumstances of each consultation as some may need no remedial action. An example provided by the 2019 Guidance is "for instance those [consultations] aimed solely at professional groups, and that carry no publicity (…)".

During the election period departments may continue to receive and analyse responses with a view to putting proposals to the incoming government, but the 2019 Guidance advises against any statements or publicity during the election period. It is therefore unlikely that any consultation response will be published during the election period. 

Statutory instruments

The 2019 Guidance states that the general principle that Ministers should observe discretion in initiating any new action of a continuing or long-term character applies to the making of commencement orders, which during the election period should be exceptional. 

Legislation

The State Opening of Parliament only occurred on Monday 14 October marking the formal start of the parliamentary year. The Queen's Speech set out the government's agenda for the next session, which now comes to a very early end from 00:01 on Wednesday 6 November 2019. 

Any legislation which does not achieve royal assent will not automatically be carried over. At the time of writing only two bills had achieved royal assent, the Northern Ireland Budget Act 2019 and the Early Parliamentary General Election Act 2019!

Public Bills may be carried over from one session to the next, subject to agreement, but clearly that will depend on the outcome of the election. The Final Progress of Public Bills list will be published only after the official end of the session, ie after 6 November 2019.

The content of October's Queen's Speech is of course likely to be reflected in the Conservative party's manifesto in due course.

Cabinet Committees

A number of committees and inquiries are ongoing and will now be curtailed. The 2017 Guidance stated that Cabinet Committees could continue to meet. This has been deleted from the revised 2019 Guidance which makes it clear that Cabinet Committees are not expected to meet during the election period, but contains a provision that there may be exceptional circumstances under which a Committee meeting is required. The last issued list of Cabinet Office Committees listed the following on 29 July: EU Exit Strategy (XS), EU Exit, Economy and Trade (XET), EU Exit Operations (XO), Domestic Affairs & the Union (DAU), Parliamentary Business and Legislation (which considers matters relating to the government's legislative programme), and the National Security Council.

Select Committees

The overall aim for departmental select committees is to hold Ministers and Departments to account for their policy and decision-making and to support the House in its control of the supply of public money and scrutiny of legislation. There is a Commons Select Committee for each government department, examining three aspects: spending, policies and administration. Lords Select Committees do not shadow the work of government departments, but their investigations look into specialist subjects, taking advantage of the Lords' expertise and the greater amount of time (compared to MPs) available to them to examine issues.

The 2019 Guidance confirms that House of Commons Select Committees set up by Standing Order, technically, continue in existence until the relevant Standing Order is amended or rescinded. However, it also acknowledges that in practice, when Parliament is dissolved pending a general election, membership of committees lapses and work on their inquiries ceases. House of Lords Select Committees are not set up by Standing Orders and technically cease to exist at the end of each session.

Departments are advised that they should continue to work, on a contingency basis, on any outstanding evidence requested by an outgoing committee and on any outstanding government responses to committee reports. But the 2019 Guidance notes that it will be for any newly-appointed Ministers to approve the content of any draft departmental response. 

If a committee is to continue work post-election it will need to be reconstituted and it will be for the newly-appointed committee to decide whether to continue with its predecessor committee's inquiries. It is also for the newly-appointed committee to decide whether to publish government responses to its predecessor reports. The 2019 Guidance notes that there may be some delay before the committee is reconstituted, and an incoming government may well wish to publish such responses itself by means of a Command Paper. 

Other revisions to the Cabinet Office Guidance

The 2019 Guidance contains some further notable revisions. A new paragraph has been inserted into Section L on the use of government property. The new text advises that it is important that those legally responsible for spending public funds or the use of public property ensure that there is no misuse, or the perception of misuse, for party political purposes. October 2019 marked the 25th anniversary of the Committee on Standards in Public Life. This Committee acts as the guardians of the 'Seven Principles of Public Life' ('Nolan Principles') and its role is to advise the Prime Minister, national and local government and the public on trends, issues and concerns about standards in public life. The revised 2019 Guidance contains a reminder that decision-makers must respect the 'Nolan Principles' when considering the use of public funds or property during the election period. The principles include an expectation that public office holders take decisions impartially, fairly and on merit and maintain their accountability to the public for their decisions and actions. 

Local Government

There is statutory guidance for local authorities about publicity. Section 2 of the Local Government Act 1986 (as amended) provides, in summary, that councils should "not publish any material which, in whole or in part, appears to be designed to affect public support for a political party." Section 4 makes clear that councils need to have regard to the Code of Recommended Practice on Local Authority Publicity issued. This prohibits councils from publishing any material which appears to be designed to affect public support for a political party. 

These obligations apply year-round but are particularly sensitive during a pre-election period. The pre-election period starts with the publication of the notice of the election. The Local Government Association (LGA) in response to requests from council's published and updated guidance note in February 2019 'Purdah: a short guide to publicity during the pre-election period', which gives further information. Publicity will include any communication, in whatever form, addressed to the public at large or to a section of the public. 

The LGA advises that in general, authorities should not issue any publicity which seeks to influence voters, ensure that publicity relating to policies and proposals from central government is balanced and factually accurate and compliant with laws which prohibit political advertising on television or radio. 

The LGA Guidance states that authorities may continue to discharge normal council business (including determining planning applications, even if they are controversial). 

The LGA Guidance advises authorities against launching any new consultations. Unless it is pursuant to a statutory duty, authorities are advised not to issue any new consultations or to publish report findings from consultation exercises, which could be politically sensitive. 

Scotland, Wales and Northern Ireland

During UK General elections the devolved administrations and their civil servants carry out their functions in the usual way and civil servants will continue to support devolved Ministers in their work. However, civil servants should be aware of the need to avoid any action which is, or could be construed as being, party political or otherwise controversial in the context of the UK general election.

Some further thoughts on what could also happen...

The last time a general election produced a hung Parliament and a coalition government, dissolution took place on 12 April followed by the election on 6 May and the state opening of Parliament on 25 May 2010. No Parliamentary business was conducted, effectively for 6 weeks from dissolution. Overall, the process of government formation following the 2010 general election was 'successful' in the sense that a relatively stable government was able to be formed.

If the 2019 election were to produce a hung parliament then one might speculate that no return to Parliamentary business might be anticipated at the earliest before 18 December 2019 – and that is on an assumption that a government could be formed. 

The last revision of the Cabinet Manual dated 2011, contains some further guidance on restrictions continuing post-election. That advice is in part the result of The Political and Constitutional Reform Committee's 4th report published on 28 January 2011 on the lessons from the 2010 election and governement formation.

The Manual contains the revision that, "Immediately following an election, if there is no overall majority, for as long as there is significant doubt over the Government’s ability to command the confidence of the House of Commons, many of the restrictions [which apply in the immediate pre-election period] would continue to apply. The 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." (paragraph 2.30)

The Manual also states that, "If decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition." (paragraph 2.29).

The Manual clarifies that it customary for Minister's continuing in office to observe discretion in initiating any action of a continuing or long term character and that in practice this means the deferral of 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. 

The Reform Committee's 2011 report attributed the 'success' in government formation in 2010 to, "mostly (…) the careful preparation of the civil service and the good sense and civility of the political parties." 

Even if one were to assume that in the event of a hung Parliament government formation would again be 'successful', this is still a very tight timescale if it is to remain true to the PM's recommended timetable, that Parliament will first meet "before 23 December" and return to Parliamentary business as usual.