An election has been called, what happens now? Dissolution and pre-election sensitivity

9 minute read
24 May 2024

Author(s):

On Wednesday 22 May 2024, Prime Minister Rishi Sunak confirmed that the King has granted his request to dissolve Parliament. In this article, we consider what happens now in terms of existing Parliamentary business and governmental decision-making in advance of a new government being formed.



Dissolution, prorogation and 'wash-up'

The election has been called for 4 July 2024.

There is a lot that needs to happen before a general election, including a number of legal formalities set out in Schedule 1 of the Representation of the People Act 1983. Those include the issuing of writs for each constituency authorising the election and the nomination of candidates. The timetable set out in the 1983 Act requires that Parliament be dissolved at least 25 days before the election.

At the point of dissolution, the current Parliament comes to an end and MPs lose their seats. Any bills currently before Parliament that have not yet received royal assent will fall as they cannot be carried over to the next Parliament.

This leads to a period called the 'wash-up' between the calling of an election and dissolution during which the Government attempts to complete as much unfinished Parliamentary business as it can. This depends on the co-operation of the opposition so compromises will often be made where the Government is keen to get a particular Bill onto the statute books.

The Government has chosen to shorten the wash-up period by asking the King to prorogue Parliament from 24 May. Prorogation brings a Parliamentary session to an end, meaning that no Parliamentary business can take place, although MPs retain their seats.

As such, the Government gave itself two days (Thursday 23 May and Friday 24 May) to conclude all of the Parliamentary business it can before prorogation when the House of Commons rises on 24 May (which could be a late night).

Although any bills that have not become law prior to dissolution will fall, the situation is a little different for statutory instruments. Where a statutory instrument subject to the affirmative procedure (which require explicit approval by each House) has been laid but not voted on before dissolution, it does not need to be re-laid when the new Parliament meets and can be voted on by the new Parliament.

For statutory instruments subject to the negative procedure – where the instrument becomes law when signed by the Minister and Parliament then has 40 'sitting' days from when it is laid to annul it – the 40-day period will be suspended for the period where Parliament is dissolved and recommence when the new Parliament meets.

After prorogation on 24 May, MPs will then remain in their jobs for around a week allowing them access to the Parliamentary estate to pack up their offices before dissolution on 30 May.

Ministers, civil servants and pre-election sensitivity ('Purdah')

Unlike MPs, ministers remain in power following the dissolution of Parliament until the new Government is formed. Civil servants also remain in post at their departments. This ensures that there is no gap in the governance of the country when an election is called.

However, there is a political convention (referred to as the period of pre-election sensitivity or, historically, 'Purdah') which restricts what the Government can do after Parliament has been dissolved in the lead up to an election. For ease, in this article we will refer to it as the PPES.

PPES is a political convention which is based upon accepted customary behaviours. Essentially, these form the basis of a code of conduct concerning what government can and cannot do during the pre-election period. However, they are not codified in law, nor regulated by statute, instead being run through conventions.

The closest there is to an official statement of what the convention entails is found in the Cabinet Manual which provides that –

"2.28 In the period immediately preceding an election, the Cabinet Office publishes guidance on activities in the run up to polling day. The Prime Minister writes to ministers in similar terms.

2.29 During this period, the government retains its responsibility to govern, ministers remain in charge of their departments and essential business is carried on. Ministers continue in office and it is customary for them to observe discretion in initiating any action of a continuing or long-term character. 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, provided that such postponement would not be detrimental to the national interest or wasteful of public money. If decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition."

Before each election, this is supplemented by guidance for civil servants, published by the Cabinet Office. The 2024 guidance (published 14 May) makes the additional point that activity by Government departments and public bodies should not be seen to compete with the election campaign for public attention. So, for example, it states that no new public consultations should be launched during the election period.

There are two reasons for the convention:

  1. refraining from making significant decisions prevents interference in, or distraction from, the election campaign; and
  2. post-election, a new government may have different opinions and plans of its own, meaning that it would not be appropriate for new commitments to be made during the pre-election period that would bind the hands of the next administration.

As the Cabinet Manual implies, PPES is often associated with a degree of uncertainty. The convention is highly fact sensitive, and its precise limits are not always clear in any case.

As indicated, while it must be ensured that government business runs as usual and duties are fulfilled, other matters which are not part of normal business – specifically, proposals for or decisions regarding new policy, or high value or politically contentious contracts – should not normally be made during the pre-election period. But this is subject to an exception where delay would not be in the public interest.

In reality, government tends to act quite conservatively in order to avoid engaging in behaviour which may be considered a breach of the convention. Moreover, PPES is no longer considered exclusively applicable to ministerial departments of government but is generally observed by a much wider range of public bodies such as regulators and NHS agencies.

In practice, therefore, many major decisions or announcements that might otherwise have been made during the pre-election period are likely to be delayed until after the election. Anyone with a commercial or other interest in decisions made by public bodies during this period should take this into account.

What happens after the election?

Where a decision has not been made before an election is called, and cannot be made during the pre-election period by virtue of PPES, it should be noted that there will also continue to be a period of delay after the election. In normal circumstances, it can take approximately two weeks for MPs to be sworn in, and an equivalent time for all ministerial posts to be allocated. During this time, major departmental decisions will not be made.

Even once ministers have been sworn in as MPs and appointed to ministerial office, there is likely to be some further delay while those who are new to their posts are briefed by civil servants.

In the event of a hung Parliament – which some are saying is a plausible outcome on this occasion - all of these time periods could be further attenuated as the process of forming a government will take longer.

In total, therefore, the period of pre- and post-election delay in relation to any decision that is subject to PPES can be expected to be in the range of seven to twelve weeks.

Furthermore, while the polls suggest this is unlikely, if the newly elected Parliament fails to deliver a working majority for any individual party, there will be a period of government formation which could extend for several days. If so, the understanding is that PPES will in practice extend until a new government is formed.

For more information or to discuss any of the points raised in this article, please contact Kieran Laird.


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