As we wait for the formation of a UK Government following the General Election on 4 July 2024 and we see so many Ministers on the campaign trail, it begs the question of what happens to government business in the period leading up to the election. Is it business as usual and will any government activity occur?
The UK Cabinet Office has now issued its General Election Guidance 2024 which sets out the key principles on the activity of the UK Government during a 6-week pre-election period commencing on 25 May 2024. It provides an important insight into central government activities during this period and, although limited in its application, the Guidance has important implications for anyone affected by government activity (i.e. all of us).
Is it business as usual?
No. While the UK Government retains all of its responsibilities during the pre-election period and Ministers retain their ministerial responsibilities, the guidance (reflecting customary practice) makes it clear it is not a case of business as usual and that Ministers are "to observe discretion in initiating any action of a continuing or long term character". In particular, "decisions on matters of policy, and other issues such as large and/or contentious commercial contracts, 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".
It's certainly not going to be a case of business as usual and do not expect the UK Government to progress any novel, contentious or significant matters. There are obvious implications for the progress of legislation with Parliament being dissolved and the Guidance also applies to the making of commencement orders (which are not subject to Parliamentary procedure and are simply laid).
Will any government activity occur?
Yes. The Guidance does not negate the responsibility of the UK Government to discharge its responsibilities. This is clear from the Guidance itself which provides that "essential business (including routine business necessary to ensure the continued and smooth functioning of government and public services) must be carried on".
Expect day-to-day government business to continue (but with less publicity so as not to influence the outcome of the election).
Also, expect the UK Government to carry on with activity which may be necessary to discharge its statutory responsibilities and other legal obligations. In the case of R (ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC B12 (Admin), the High Court helpfully clarified that the general election guidance did not constitute a principle of law and instead reflected convention only. It does not, therefore, "trump" or negate the duty of the Government to comply with its statutory duties or its obligations to the court.
In this case, the claimant contested the Secretary of State's decision to seek to delay the publication of a draft modified Air Quality Plan (which it had previously been ordered to publish by the Court following judicial review proceedings) to comply with the general election guidance for the 2017 General Election. Although, the Court did accept that the Government should take the guidance into account in its decision-making process, it found that, in any event, exceptional circ*mstances existed so that the Government should not delay the publication. These included the fact that the publication was required by a court order; the Government is under a general legal duty to comply with law by the earliest date possible; and that delay caused a threat to public health.
Expect then for everyday business activity to occur as well as essential activity in order for the UK Government to comply with its legal obligations.
Devolved Administrations
The General Election does not, of course, affect the constitution of the Devolved Administrations and the Guidance does not apply to them. Nonetheless, the Guidance does refer to the activities of the Devolved Administrations continuing "largely as normal", but emphasising the "need to avoid any action that is, or could be construed as being, party political or likely to have a direct bearing on the general election". The Scottish Government has published its own Guidance.
Local Government
While the Guidance does not directly apply to local authorities, local authorities will also have regard to it and seek to ensure that their activities continue as normal but proceeding with caution in respect of politically contentious or significant decisions. Local authorities may issue their own guidance on these matters.
