A general election campaign before 31 October Brexit deadline would mean that no deal preparation is happening while restrictions on government activity are in place. This would both undermine those preparations and place the civil service in an unprecedented and very difficult position.
When election campaigns get underway, guidance is issued to both civil servants and ministers on what government can and can’t do during that period. These restrictions are based on long-standing principles – laid out in the Ministerial Code – that the Government cannot initiate any major new policy and that government resources must not be used for party-political purposes.
The Cabinet Manual makes clear those restrictions apply automatically however we get to an election – one engineered by the Prime Minister or one forced on him by Parliament. This will create problems if an election is held in the next three months. Even if the election date were before exit day, the civil service will need to continue preparing for no deal as long as there remains the chance that the UK leaves the EU on 31 October.
The guidance makes clear that the Government remains in power and ministers in departments, but no new action should take place unless it is in the national interest or unless not acting would waste public money. Guidance on the restrictions also says that essential business should continue.
In general, no deal preparation should be covered by those caveats. Preparing would be essential and it is already government policy – and it would be preparation for an exit that has previously been legislated for by Parliament and continues to be the legal default. However, the guidance also says that decisions "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". The main parliamentary opposition parties are all implacably opposed to no deal, and no deal preparations do not – as we discovered in March – necessitate a no deal Brexit.
Government activity is not supposed to compete with the election campaign for public attention: this would affect restrictions on announcements and other government communications, which the Government sees as vital to get business and citizens to prepare. Indeed, the Government is promising a media blitz to shake businesses out of their complacency. Cancelling those communications would undermine that plan – compounded by the risk an election itself would make many watch for the outcome rather than prepare.
Then there is the impact on the civil service. Continuing with no deal preparation would certainly contravene the principle that ministers don’t undermine the political impartiality of the civil service. The civil service might have to ask for a direction – formal instructions from ministers telling their department to proceed with a spending proposal – from the Government, particularly if there was any significant new spend during the campaign period.
Another issue for some of Boris Johnson’s team is where they would want to put their energy. Special advisers have to resign if they wish to take part in an election campaign. Some SpAds are given dispensation to stay on in government, but this means they cannot take part in any campaigning. In this case they would have to choose between taking part in the campaign and any government work, including overseeing no deal preparation.
The new Prime Minister has said that no deal preparation will be ramped up even further. If he chooses a general election or one is forced on him, he will quickly have to decide whether the success of that preparation can fit with the timetable for an election – or whether an election will force him to do the one thing he has ruled out: ask the EU27 for an extension.