CO (23) 8: Constitutional Procedures after the Election

1 In January this year the Cabinet Office issued guidance on government decision making in the pre-election period¹. That guidance noted that the government has the right to govern as usual until the election. As in previous election years, the government has chosen to exercise restraint in respect of significant appointments and government advertising.

2 This circular provides guidance on the constitutional procedures that will apply after the general election. It includes key dates, a summary of the transition process between administrations, and references to other guidance material.

3 All Ministers, Ministers’ offices, and public sector agencies are expected to follow this guidance.

4 For the purposes of this circular, “public sector” has the meaning in paragraph 3.5 of the Cabinet Manual 2023.

5 The key dates in the immediate post-election period are as follows:

6 Other dates, such as the appointment ceremony for Ministers, the first meeting of the new Parliament, and the full resumption of government business, will not be known until after the election. This information will be provided as soon as it is available.

7 After polling day, the Prime Minister is likely to indicate that the incumbent government will operate in accordance with the caretaker convention until the political situation is resolved and the new administration has been sworn in (see paragraphs 6.21 to 6.40 of the Cabinet Manual about decision making during periods of caretaker government and the role of public service agencies in that process).

8 During the caretaker period, Ministers continue to hold full executive authority, and are entitled to receive the same level of support that they normally receive from the agencies for which they are responsible, including being advised and getting information for the purposes of administering government business within their portfolios.

9 Ministers should, however, ensure that any requests that they make for advice or information from their officials are for the purposes of their portfolio responsibilities and not for party political purposes (including negotiations to form a government).

10 In summary, there are two arms to the caretaker convention:

11 Cabinet and individual Ministers may be constrained in their decision making during this period in accordance with the caretaker convention. Further information will be provided at that time on practical arrangements for Cabinet decision making after the election.

12 Current Ministers continue with their existing responsibilities after the election, until new Ministerial appointments are made or their responsibilities are reassigned. Ministers who are not returned as MPs may continue in office as caretaker Ministers for a period, but must leave office no later than 28 days after polling day (that is, by 11 November 2023), under section 6(2)(b) of the Constitution Act 1986. The Cabinet Office will arrange for Ministers in this situation to submit their resignations to the Prime Minister and the Governor-General, if required.

13 It is possible that following the general election, two or more parties will negotiate to form a new government.

Guidance on support from public service agencies#

14 While inter-party negotiations to form a government are the business of politicians, negotiating parties may seek access to public service agencies for information and analysis on issues that might form part of any coalition, support or other agreement. The process for seeking such information or analysis is set out in Schedule 3 of the Public Service Act 2020.

15 The Public Service Commissioner manages any involvement by officials in the government formation process. Political parties involved in negotiations to form a government must make a request for information to the Commissioner directly².

16 The Commissioner sets standards for public service agencies to follow when processing a request made for access to information or analysis during this period. All public service agencies must comply with those standards, unless otherwise agreed by the Commissioner³. It is expected that all agencies in the public sector observe the guidance, including by referring any requests received from political parties involved in negotiations to form a government to the Public Service Commissioner for the coordination of a response.

The role of the Governor-General#

17 By convention, the Governor-General’s role in the government formation process is to ascertain where the confidence of the House of Representatives lies, based on the political parties’ public statements, so that a government can be appointed. It is not the Governor-General’s role to form the government or to participate in any negotiations (although the Governor-General may wish to talk to party leaders if the talks have no clear outcome).

18 The Governor-General will, by convention, abide by the outcome of the government formation process in appointing a government. The Governor-General will also accept the political decision as to which individual will lead the government as Prime Minister.

19 During the government formation process, the Clerk of the Executive Council provides official, impartial support to the Governor-General, including liaising with party leaders as required on the Governor-General’s behalf.

20 Once the outcome of any government formation process is known, the timing and arrangements for the transition from one administration to the next depend on a number of practical matters, including the allocation of portfolios. Portfolio responsibilities will not formally change until the current Ministers have resigned and new Ministers have been appointed by the Governor-General.

21 In practice there is usually a period of some days between the formation of a new government and the new ministry taking office. Current Ministers continue in office, in a caretaker capacity, until new appointments are made (subject to section 6(2)(b) of the Constitution Act – see paragraph 12 above).

22 It is the practice for a full appointment ceremony to be held when a government is formed after an election, even when the composition of the government has not changed greatly. The ceremony formally marks the formation and commencement of a new administration, and marks the end of the caretaker period.

23 Once the new ministry is ready to be sworn in, the incumbent Prime Minister will tender the resignation of the incumbent administration, effective at the time of the appointment of a successor administration. The new ministry will be sworn into office and the Governor-General will sign the warrants appointing Ministers to particular portfolios.

24 Portfolio responsibilities may change after the election, either as a result of a reshuffle or a change of government. Agencies should not assume, therefore, that an existing Minister will retain a certain portfolio or that a party spokesperson for a certain portfolio will be appointed as the Minister for that portfolio.

25 Each new Minister will receive a Briefing for the Incoming Minister (BIM) in respect of each of their portfolios. The portfolio or lead Minister will, except in exceptional circumstances, authorise the public service agency to provide copies to any Associate Ministers. The briefing process is likely to include formal documents as well as meetings and other communications, happening over a number of weeks.

26 Public sector agencies that are not part of the public service would normally brief the incoming government through the relevant public service agency. If an agency considers it appropriate to brief a Minister separately, it is expected that the agency will comply with the rules that apply to public service agencies concerning the timing, content, and release of BIMs. If a separate briefing is provided, the agency should provide a copy of it to their monitoring agency.

Content#

27 Guidance on the content of BIMs is set out in paragraphs 3.18 to 3.23 of the Cabinet Manual, and in Chapter 7 of the Public Service Commission’s guidance He Ārahitanga Pōtitanga Whānui General Election Guidance.

28 The written briefing should be tailored to the needs of the new Minister and prepared in similar presentation and style to other agency advice to the Minister. The level of detail included in this initial briefing will vary depending on whether the Minister concerned has had any prior involvement with the portfolio, and whether there has been a change of government. The purpose 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.

Timing#

29 BIMs are usually provided to new Ministers following their appointment (that is, after the appointment ceremony). The incumbent Prime Minister may, however, wish to authorise the provision of BIMs to incoming Ministers once portfolio allocations have been announced through the Ministerial List. The Secretary of the Cabinet will inform chief executives of any such authorisation from the Prime Minister.

30 Agencies must inform the incumbent Minister and the Public Service Commissioner before providing BIMs in such cases. The incumbent Minister continues to hold full executive authority until the incoming Minister has been appointed.

31 If government formation negotiations have concluded and there is to be a change of government, 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 Public Service Commissioner.

Release of BIMs#

32 While BIMs are subject to the Official Information Act 1982, there is no presumption of public release. Whether a BIM is released publicly is a matter for the Minister, not the agency, to decide (see paragraph 3.21 of the Cabinet Manual).

33 Public service chief executives should forward a link to this circular to the heads of relevant public sector agencies within their Ministers’ portfolios.

34 Further information on constitutional procedures after the election is available as follows:

35 Following the election, the Cabinet Office will issue circulars on the practical requirements for decision making in the post-election period.