3 Following a general election
3.1 Caretaker convention
- Following an election, the incumbent government is the lawful executive authority until a successor administration is sworn in.
- Governments in this situation have traditionally constrained their actions until the political situation is resolved, in accordance with the ‘caretaker convention’.
- On occasion, it is necessary for a government to remain in office for an interim period when it has lost the confidence of the House, or (after an election) until a new ministry is appointed 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.
The caretaker convention has implications for decision making during this period. The principles that apply depend on whether or not it is clear which party or parties will form the next government. In general, new policy initiatives and significant or controversial issues should not be taken during this period. For advice about the application of the caretaker convention in particular circumstances see Chapter 6 of the Cabinet Manual.
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 to form a government
- The government formation process is a political one. State sector employees have limited involvement in any negotiations by political parties to form a government.
- Only the Prime Minister may authorise access by a political party to State sector agencies.
- The State Services Commissioner is the contact point and facilitator between political parties and State sector agencies.
The formation of a government is an inherently political process. Political parties may be expected to negotiate with respect to possible coalition or support arrangements. The incumbent Prime Minister is responsible for authorising assistance from agencies during the government formation period. The State Services Commissioner coordinates the involvement of State servants during this period, to ensure that the political neutrality of the State services is not put at risk.
If a State sector agency receives a direct request for information or assistance from a political party (including parties represented in the government), it should refer the request to the State Services Commissioner and notify the relevant Public Service department (if applicable). Ministers must refer such requests to the Prime Minister. Further 2017 information will be published in standalone guidance here: http://www.ssc.govt.nz/negotiations.
3.3 Briefing a new Minister or group of Ministers
- Each new Minister will receive a Briefing for the Incoming Minister (BIM) in respect of each of his or her portfolios
- A sectoral briefing may be prepared for a group of Ministers
- Concise briefings must focus on the immediate needs of a new Minister taking on a portfolio.
- The briefings are not intended to be detailed analyses of the portfolio, or of policy issues; an exception to this is where immediate decisions are required
- Briefings are confidential to the Minister, are subject to the provisions of the OIA and it is up to the Minister to decide if the BIM is to be released.
The purpose of the initial briefing is to give a new Minister sufficient information to meet their initial requirements, but is not intended to be a detailed analysis of the portfolio or of policy issues. The briefing is part of a wider process: Ministers will be able to call for a fuller briefing on issues of interest and importance to them during that process. This allows the initial briefing to be wide ranging, enabling the Minister to see the breadth of the portfolio, while still being concise.
The briefing is for an incoming Minister(s) and should be written accordingly. The portfolio or lead Minister will other than in exceptional circumstances, authorise the department to provide copies to any Associate Ministers.
A briefing for an incoming Minister should be in draft before the outcome of a general election is known. This is part of the State services stewardship responsibilities. However, it is sensible to reassess the draft once the outcome of the general election is known as agencies may need to take into account a Minister’s prior knowledge (e.g. a Minister returning to the same portfolio may not need the same level of information as a new Minister), a Minister’s preferred style of communication (if it is known) and/or the incoming Government’s priorities including the content of coalition or support agreements.
The briefing is confidential to the Minister or group of Ministers. Recent practice has been for the BIM or initial briefing to be released publicly by the Minister, a sectoral lead Minister, or a grouping of Ministers. This should not be assumed. The normal provisions for material requested under the Official Information Act apply to any request for briefings made under that Act. Ministers, not agencies, should decide whether to publicly release all or part of any such briefings.
It is important to note that the briefing process does not substitute for other Cabinet processes. For example, policy proposals with fiscal implications will require to be delivered subsequently through the Budget process including consultation with related agencies and, in particular, central agencies.
Generally, the BIM may be provided to Ministers following their appointment (that is, after the appointment ceremony).
Incoming Ministers or an incoming Government may, however, be briefed in advance in the following circumstances (see Chapter 3 of the Cabinet Manual):
- If government formation negotiations have concluded but portfolio allocations have not yet been announced, Chief Executives may, in cases of great urgency, provide advice to the incoming government through the Prime Minister-designate. This advice may be given only after the express consent of the incumbent Prime Minister has been obtained and a process has been agreed with the State Services Commissioner.
- If portfolio allocations have been announced through the Ministerial List, but incoming Ministers have not yet been formally appointed, Chief Executives may brief incoming Ministers with the approval of the incumbent Prime Minister and with the knowledge of the incumbent Minister and the State Services Commissioner.
The full briefing process should occur over a number of weeks following a general election after a Minister is appointed whether or not the Minister held that portfolio in the previous Government.
Chief Executives should seek an early opportunity to discuss the process for ongoing engagement with the Minister, and how the agency can best meet the Minister’s needs.
BIMs from other agencies
Agencies in the wider State sector and agencies within Ministers’ portfolios that do not form part of the State sector would normally brief the incoming government through the relevant department.
Ministers are likely to expect briefings from some Crown entities, especially those with significant policy and operational responsibilities. Crown entity briefings should be driven by Ministers’ needs and the monitoring department should facilitate the briefing process. Where Crown entities do produce briefings, they should follow the Cabinet Manual and this guidance.
If a separate briefing is provided, the agency should still liaise with and provide a copy of it to the relevant department.
Chapter 3 of the Cabinet Manual provides information on what the BIM does i.e. the briefing
- describes the organisation and responsibilities of the department or agency, as well as any Crown entities or other state sector agencies within the portfolio
- sets out the terms of reference, membership, and terms of office for all boards, commissions, tribunals, and so on, for which the Minister has responsibility
- includes an account of major outstanding policy issues and the implementation of current programmes, and
- sets out details of pending decisions or action that will be required of the Minister, including recommendations for draft legislation (taking into account any coalition or support agreements, or pre-election undertakings).
- Below is a discussion of things to consider when drafting a BIM. BIMs come in many forms and styles. There is no one right way to provide a BIM and therefore no template is provided.
The briefing should take into account the Minister’s and the Government’s priorities and interests, as well as the Minister’s existing knowledge of the portfolio and of the department or agency concerned. The outline of these issues in a briefing that follows a general election will need to take into account relevant election manifestoes, and decisions taken or positions reached as a result of government formation negotiations. More detailed descriptions and suggested options can be provided later when a particular matter is submitted to a Minister for decision. A broad environmental scan of future challenges is important to a Minister. This can be provided during the briefing process when the Minister has more time to consider it, rather than including it in the initial briefing. Providing in-depth advice or making recommendations on policy options in the briefing may constrain the advice contained while not necessarily being in line with Ministers’ expectations or immediate needs. The briefing process should not be used to promote Budget proposals – these should be advanced through the normal Government Budget processes.
At this early stage of a Minister’s term, it is suggested that the briefing focuses on decisions that are likely to be required no more than six months out, including recommendations for draft legislation (taking into account relevant election manifestos, coalition agreements and support arrangements) and any significant appointments that require decisions. Judgement is required on the content and amount of detail. A balance is needed between ensuring a new Minister is well-informed, and giving advice before the department has had the chance to engage the Minister and learn the new Government’s policies for this area.
A BIM is also an opportunity to provide information on staff that the Minister will be engaging with and make the Minister aware of significant risks within the department or portfolio, and to advise the Minister whether the agency concerned has any statutorily independent functions.
Consultation with Central Agencies
Departments should seek advice from the central agencies as they plan and draft their briefings, particularly on matters that relate to central agencies e.g. industrial relations, machinery of government, significant fiscal risks.