REUTERS | David Bebber

High Court confirms that “purdah” is not a principle of law

On 22 November 2016, in ClientEarth’s judicial review of the government’s air pollution policy, the High Court ordered the defendant, the Secretary of State for the Environment, Food and Rural Affairs (SoS) to publish a draft modified Air Quality Plan (AQP) by 4pm on 24 April 2017, and a final Air Quality Plan by 31 July 2017 (see Legal update, ClientEarth succeeds in judicial review application to quash government’s December 2015 air quality plan (High Court)).

However, with the Prime Minister’s announcement on 18 April 2017 that she intended to seek an early election, the SoS issued a fresh application to vary the order, suggesting that the draft AQP should be published by 30 June 2017, and the final AQP by 15 September 2017. The order was sought on account of the “Purdah restrictions in place as a result of the forthcoming local government elections [which took place on 4 May 2017] and general election [8 June 2017]”.

The High Court’s decision on the application was issued on 27 April 2017, see R (ClientEarth) v Secretary of State for Environment, Food And Rural Affairs [2017] EWHC B12 (Admin) and Legal update, Government must publish draft air quality plan before the general election (High Court).

Application to amend order

The SoS contended that its application to amend, in the context of both local and general elections, addressed important matters relating to the democratic process and the effectiveness of introducing a draft AQP. Its view was that holding a consultation on a draft AQP in the period running up to an election was a distraction from the election and would undermine the effectiveness of the consultation.

ClientEarth, recognising that local authorities were important consultees on a draft AQP and that there were advantages in not commencing a consultation on the draft plan until after new members were in post, did not resist the grant of an extension until after the local elections. However, its view was that the same considerations did not apply to the general election.

The issues therefore for the court were:

  • The nature of purdah.
  • The effect of the general principles in the Cabinet Office general election guidance and whether the case fell within the exceptional circumstances described in that guidance.
  • How it should exercise its discretion.

So what is Purdah?

Purdah, a word of Indian origin used figuratively to describe the Indian system of secluding women of rank from public view, has been adopted in English to describe the period before an election in which ministers, public servants, local government members and officials are expected to refrain from taking controversial decisions. It is in effect a self-denying ordinance imposed by local or central governments on its officers and members.

As Garnham J proceeded to explain in his judgment, purdah is not a principle of law. The government’s guidance (see Legal update, General Election guidance for civil servants published by Cabinet Office) is not directed towards the court but addressed to government ministers, other elected officers and officials in central or local government.  Purdah does not amend duties imposed on ministers by statute or provide them with a defence to proceedings in private or public law.  What is set out by the Cabinet Office in its guidance is not law, it is convention. Ordinarily such convention must give way to a duty under statute or an order of the court.

Because of its important functions in safeguarding the electoral process, the concept of purdah will be carefully taken into account by the court in reaching decisions that affect central and local government in the period immediately before elections. However, it is in no sense binding on the court. Conceivably, a breach of the rules of purdah might found a claim in the courts against the executive (for example, proceedings based on misconduct in public office or on breaches of legitimate expectation). This is because such a breach may, conceivably, constitute a legal wrong but its enforcement is not a legal right granted to the government.

The effect of the general election guidance

Paragraph 3 of the guidance states that decisions on policy matters 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, provided that such postponement is not detrimental to the public interest or wasteful of public money. The SoS submitted that it would be inefficient for the incoming government to be faced with a draft AQP published by its predecessor and a partially completed consultation process. However, as ClientEarth pointed out, it would be the future administration that would take the decision on the final AQP on the basis of the draft plan consultation responses. Incoming governments frequently had to deal with issues that had not been completed by its predecessor, such as the third runway at Heathrow.

The court considered that the general principles in the Cabinet Office guidance applied in the case. In general terms, the court supported the application made by the SoS but considered that the weight to be attached to these principles was not overwhelming. The case was strongest in respect of the local elections, given the role of the local authorities was potentially crucial in the consultation on the draft plan. The Cabinet Office guidance acknowledges that it is open to the government to launch public consultations during the run-up to an election if there are “exceptional circumstances”. In the court’s view, there were exceptional circumstances that made publishing the draft AQP and commencement of the consultation essential. These were:

  • The court had ordered publication of the draft plan and the SoS was obliged to comply with the order.  Although the court has power to amend the timetable, there has to be a good reason to do so.
  • Under both domestic and EU law, there is a subsisting duty to comply with the law by the earliest possible date; there was therefore a strong case for early publication of the draft AQP and then the final report.
  • The steps that had been ordered were necessary to safeguard public health (which the court considered was the crux of the case). The continued failure by the government to comply with the Air Quality Directive 2008 (Directive) and the Air Quality Standards Regulations 2010 (regulations) constituted a significant threat to public health (as evidenced by data on the effects of exposure to nitrogen dioxide).

The court’s exercise of discretion

The court accepted that aspects of the purdah guidance were applicable. To a “modest degree”, launching a consultation about air quality risked influencing both local and general elections. The limitation on government involvement would, to some extent, adversely affect the quality of the consultation process. But in each case, the adverse effect was modest. In the court’s view, the following factors outweighed those in favour of granting an extension of time to after the general election:

  • The SoS was under a legal obligation to comply with the court order by the specified date.
  • There were exceptional circumstances that justified launching the consultation during the purdah period.
  • In November 2016, the court found the SoS to be in breach of the Directive and regulations and she remained in breach.  Granting an extension would permit a continuing breach that could only be justified in the most “exceptional circumstances”.
  • Nothing in the Directive or regulations entitled the SoS to more time because the government had called an election.
  • The draft report was prepared and was fit for disclosure were it not for the purdah restriction.
  • The continued delays constituted a continuing threat to public health.

Therefore, the court rejected the government’s application for an extension to the deadline that it had imposed for publication of the UK’s draft AQP. It was prepared however to extend time to 9 May 2017 to enable local elections to be conducted and for new members to take up their posts before the draft was published. The date for publication of the final plan remained unchanged.

The case provides an interesting insight into the concept of purdah and the court’s consideration of that concept in relation to the application by the Secretary of State.  As the court stated, purdah does not provide an automatic right to an extension of time to comply with an order of the court and is not a “trump card” to be deployed at will by one litigant.  Although the court considered that the general principles in the Cabinet Office guidance applied, it was satisfied that they did not establish that publishing the draft AQP before the general election was unacceptable.

For more information on Purdah, see Practice note, “Purdah”: the decision-making of public bodies in a pre-election period and for an earlier blog on decision-making of public bodies in the pre-election period, see Opinion, Passing legislation and decision-making in Parliament’s “wash-up” period.

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