Purdah – when does it not apply?

Once again, in these uncertain times, what we thought we knew isn’t so certain…

The High Court has recently clarified, in R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs[1], the extent to which the Government and Local Authorities are bound to observe purdah in the run-up to elections, considering what constitutes an exceptional policy to which purdah applies. This case will be of particular significance to ministers and public servants during the final weeks in the run up to the general election on Thursday 8th June 2017.

What is purdah?

Purdah is a custom in British politics, intended to deter ministers, public servants, officials and councillors from engaging in potentially controversial decisions in the weeks immediately preceding elections. It is aimed at preventing any ‘inside’ interference in the election process; for example, the unveiling of favourable policies by the incumbent party to boost their popularity. Purdah is a convention rather than a principle of law, and therefore does not bind the Courts in their decision-making.

Background

The ClientEarth case concerned the Air Quality Directive 2008/50/EC and its implementing domestic legislation, the Air Quality Standards Regulations 2010. These pieces of legislation impose an obligation on the Government to provide an Air Quality Plan (‘AQP’) to reduce nitrogen dioxide (‘NO2’) emissions. ClientEarth, an activist environmental law organisation, had previously challenged the Government on the content of their draft AQP. The challenge was successful and the Supreme Court ordered the Government to revise and re-publish their draft AQP no later than 4:00pm on 24th April 2017.

Case facts

On 18th April 2017, the Government announced a snap election which was approved in the House of Commons the following day. Purdah was subsequently invoked, with Cabinet Office guidance providing that “it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character”. The Government applied to the High Court for a time extension for publishing the draft AQP on the basis that the accompanying public consultation would be negatively affected by purdah.

The Government’s main contentions were that: (1) the draft AQP would risk influencing the local and general elections; (2) the elections would undermine the effectiveness of the public consultation and (3) it would be unreasonable to bind the incoming government with a draft AQP and partially completed consultation process.

These arguments were accepted by the Court in relation to the local elections due to the “role local authorities would play in reducing NO2 emissions”. The deadline for publishing the draft AQP was moved back to the day following the local elections to provide Local Authorities with the opportunity to devote their full attention to the consultation. However, the Court refused to extend the deadline further to accommodate the purdah period for the general election.

The Court found that this was an “exceptional” policy whereby the convention of purdah did not apply during the prelude to the general election. Despite attaching modest weight to the Government’s arguments, the Court found that a further delay would present a significant threat to public health given the fatal effects of NO2 emissions. The Court also emphasised that there was a positive duty on the Government to comply with the Directive and Regulations as quickly as practicably possible.
The Government published the draft AQP as ordered on 5th May 2017.

Practical points

This decision provides a helpful summary for Local Authorities on the law in this area. However, the decision largely turned on its “exceptional” facts and it is unlikely that the case will lead in future to a more relaxed approach to the application of the purdah principle.

Stephen Pearson
Partner
stephen.pearson@freeths.co.uk
+44 (0)845 274 6900


1 The Queen on the Application of Clientearth v Secretary of State for Environment, Food and Rural Affairs [2017 WL 01831304]

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