Catherine Haddon: Pre-election policy pains

Whitehall can still face tricky decisions during an election and the purdah period can create problems – as demonstrated by the High Court battle over air quality guidelines

The court challenge over the government's air quality strategy helped shine some light on purdah rules. Photo: PA Images

By Catherine Haddon

04 May 2017

The court challenge over the government's air quality strategy helped shine some light on purdah rules. Photo: PA Images

In the aftermath of Theresa May’s surprise election announcement, the government asked for a delay to a court-ordered strategy to tackle high pollution. They did so on the basis that “purdah” restrictions on government activity during an election campaign would make the publication inappropriate. There were several problems with the government’s argument, which the High Court rightly saw through.

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Firstly, the government were right to argue that local election purdah had legal implications for publishing the consultation. Unlike for general elections, local election ‘purdah’ is mandated in electoral law. The air quality guidelines would have implications for local authorities. However, it is then mystifying why they didn’t ask for that extension at an earlier stage. The fact that they only requested the extension after the announcement of the general election undermined their case. Either way, the court accepted this argument when they allowed the extension until 9 May, five days after the local elections.

The second issue is that purdah guidance also specifies what the government could do in the case of consultations. It does say that in most circumstances new consultations should not be launched during an election period. But it then states that there might be “exceptional circumstances” were launching a consultation is essential, and specifically names “safeguarding public health”. It was on this basis that the High Court rejected the government’s initial request for an extension until after the general election.

While the case was over one policy, the legal judgement raised important questions about purdah’s constitutional foundation. Formally, it is an extension of the Civil Service Code – protecting the civil service from being asked to undertake acts which may call into question their political impartiality. It also places some restrictions on ministerial action. Ministers remain in charge of their departments, but it is “customary” for them to “observe discretion” on new policies or announcements, postponing decisions on which a new government might take a different view, but “provided that such postponement would not be detrimental to the national interest or wasteful of public money”. It was also on this basis that the High Court made the 27 April decision that publishing air quality guidelines were in the public interest.  

But if purdah rules are now to be judged by the courts, who else is involved in deciding its interpretation? It is the Cabinet Office who draw up the guidance, it is also their Propriety and Ethics team who then interpret it (escalating to the cabinet secretary if need be, but ultimately to the prime minister also). Separately the PM writes to all ministers, setting out similar principles.

Although the High Court had said that it was based on custom and not statute, this does not mean purdah doesn’t have any constitutional weight. Many other countries with similar civil services have formal ‘caretaker’ governments in place preventing government abuses of power during a campaign, but ensuring continuity of public services and ability to act in exceptional circumstances. The UK has never liked that term, but the principles are similar and it does hold significant constitutional importance. Purdah is a convention that relies on political good faith and reasoned application for it to survive. And it is important that it does survive.

Since 3 May we have no parliament – MPs ceased their roles and became simply candidates. Once dissolved, no recall of Parliament is possible since none exists until a House of Commons is again elected. However, ministers remain ministers of the Crown. This makes for a different kind of period when government is still able to exercise its executive powers – but with no parliamentary oversight. It is for this reason and because the party of government is campaigning to be re-elected, that we need restrictions on their power.

There are good reasons why ministers do need to make decisions. Again, convention is important. When this election purdah began, there was much political focus on the potential manifestoes, the fates of the parties across the country and the different positions each might set out for Brexit. But stuff happens: we still have a government in place, public services to be run, and need a government able to act in any crisis.

But what crisis? The ash cloud which coincided with the 2010 election or the financial crash of 2007-9 are reminders of issues that are so big they could put purdah to the test. Even as purdah got underway Boris Johnson was talking rather loosely about potential UK support to further US military intervention in Syria. With no parliament to debate and vote on such acts, knowing that the government is acting in good faith, adhering to the principles and spirit of purdah (including consulting with the opposition when necessary) is crucial. The government needs to be very careful in how it interprets and enforces purdah if it wants it to retain its constitutional legitimacy.

Read the most recent articles written by Catherine Haddon - Catherine Haddon: The battle for Johnson’s ear


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