3 Following a General Election

3.1 Caretaker Convention

Key points

• Following an election, the incumbent government is the lawful executive authority until a successor administration is sworn in.
• Governments in this situation have constrained their actions in accordance with the 'caretaker convention'.
• The Cabinet Manual provides guidance on the application of the caretaker convention and other aspects of transitions following an election. Further advice is available from the Secretary of the Cabinet if required.

On occasion, it may be necessary for a government to remain in office for some period, on an interim basis, when it has lost the confidence of the House, or (after an election) until a government is sworn in following the government formation process. During such periods the incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office. However, governments in this situation have traditionally constrained their actions until the political situation is resolved, in accordance with what is known as the convention on caretaker government.

There are two arms to the caretaker convention:

(a) where it is not clear who will form the next government;

(b) where it is clear who will form the next government, but they have not yet taken office.

There are two circumstances in which the government would see itself bound by the caretaker convention:

(c) After a general election, one of the arms of the caretaker convention applies until a new administration is sworn in.

(d) If the government has clearly lost the confidence of the House, the caretaker convention guides the government's actions until a new administration takes office, following either negotiations between the parties represented in the current Parliament or a general election.

Details about these principles, for example, making decisions that may have long-term implications, are set out in the chapter on elections and government formation contained in the Cabinet Manual: www.cabinetmanual.cabinetoffice.govt.nz/6

The Secretary of the Cabinet is available to provide advice to Ministers and agencies about the application of the caretaker convention. Ultimately the Prime Minister determines how a matter should be dealt with during this period.

3.2 Forming a Government

Negotiations

Key points

• The government formation process is a political one. State servants have very limited involvement in any negotiations by political parties to form a government.
• Any request (which arises in the course of negotiations) from a political party for information from, or access to, an agency must be referred by the agency's chief executive to the State Services Commissioner.
• The Prime Minister decides whether agency staff may provide information or technical support to political parties involved in government formation negotiations.
• If the Prime Minister approves the costing of potential coalition parties' policies, the work must be developed in conjunction with the Treasury.

The formation of a Government is an inherently political process, for example, negotiations between political parties on possible coalition arrangements. The incumbent Prime Minister is responsible for authorising access to the resources of agencies during the government formation period. The State Services Commissioner manages any involvement by State servants during this period, to ensure the political neutrality of the State Services is not put at risk. Other central agencies may be involved where necessary.

State servants who are approached by political parties or MPs (including incumbent Ministers) seeking information from or access to their agency during the government formation process, must refer the request to the State Services Commissioner, through their chief executive. The State Services Commissioner will coordinate requests with the Prime Minister. Ministers also will refer similar requests to the Prime Minister.

Chairs and heads of Crown entities and agencies in the wider State sector are not expected to have direct contact with political parties during the course of government formation. If approached, they should notify the chief executive of the department of the responsible Minister concerned.

Information or technical support to political parties on specific questions, for the purposes of government formation negotiations, will be made available only if authorised by the incumbent (caretaker) Prime Minister. Where authorised, the State Services Commissioner will be the point of contact for both receiving and responding to requests for assistance. The material should be confined to providing information and analysis on the practical implications of a proposal being considered by the political party concerned; it is not to initiate policy proposals or discussions. Agencies will provide the required material to the State Services Commissioner.

Because information which assists the process of government formation is likely to be highly sensitive, any agency involvement should be limited to a small number of senior officials.

Following an election, agencies may be asked to cost party policies as part of the information and advice sought during the negotiations between political parties to form a government. Such a request must also be referred to the State Services Commissioner. If authorised, any costing of policies for political parties engaged in negotiations to form a government must be developed in consultation with the Treasury. Departments should seek guidance from their Treasury contacts if there is any uncertainty about how any economic or fiscal analysis should be carried out; see: www.treasury.govt.nz/publications/guidance/costingpolicies/.

The Guidelines for Costing Party Political Policies (Appendix 3) cover the situation where a Minister requests a department to cost party policies prior to an election: they do not apply in a post-election situation.

When negotiations between political parties reach an advanced stage, central agencies and senior officials may - with the consent of the Prime Minister, and the oversight of the State Services Commissioner - offer to provide comprehensive advice in person about any matters of concern to those involved.

For further guidance see the State Services Commissioner's circular to departmental chief executives: www.ssc.govt.nz/negotiations, and the relevant chapter of the Cabinet Manual.

3.3 Briefing a New Minister

Key points

• Concise briefings must focus on the immediate needs of the Minister taking on a portfolio. The briefing is not intended to be a detailed analysis of the portfolio or of policy issues.
• Briefings are confidential to the Minister, but are subject to the provisions of the Official Information Act 1982.
• Guidance on briefing an incoming Minister is set out in Appendix 5.
• Agencies must follow this guidance to ensure the needs of Ministers are met.

The Cabinet Manual states that when a new Minister is appointed (which does not only occur at an election time), the chief executive of the department concerned must ensure that the Minister is briefed on the department and the portfolio as soon as he or she takes up office.

Purpose

The briefing is prepared for an incoming Minister only, and should be written solely to meet the Minister's needs. An agency should also use its briefing to indicate how it will engage with the Minister during the term of the Government.

Content and format

The briefing should be short, reflecting the time pressures on the incoming Minister; normally between five and 50 pages, depending on the size and complexity of the agency. In developing the briefing and deciding on the amount of detail required, the agency must take account of the Minister's prior involvement with and knowledge of the portfolio, the Government's priorities including coalition agreements and support arrangements, and whether there has been a change of Government.

As the Minister is the audience for the briefing, it should be prepared in the same format as normal departmental advice to the Minister. Briefings are not required to be commercially printed.

The briefing is confidential to the Minister. Although recent practice has been for briefings to be released publicly by the Minister, this should not be assumed. Any briefing is subject to the provisions of the Official Information Act.

The full text of Guidance on the preparation of briefings for incoming Ministers is at Appendix 5.