Had we but world enough and time, this coyness……

Introduction

The essence of public administration, good or otherwise, is the exercise of public power. Decision-makers who are vested with statutory and common law powers to be exercised strictly in the public interest must actually exercise those powers if they are to fulfil their roles. As to how those powers are exercised, in the United Kingdom’s constitutional arrangements, like most other contemporary representative democracies, elected politicians pursue policies which may become law through Parliament’s enactment of legislation or may be adopted by the Executive as policy to shape the exercise of statutory powers in practice.

Yet while the exercise of public power is, in this way, driven by politics, it is implemented through the absolute impartiality of the Civil Service. Civil servants carry out the practical and administrative work of government. Similar arrangements operate in local authorities and other public bodies. The division between those elected to make decisions and those engaged to implement them is a well-established and essential part of our administrative and constitutional set-up.

But what happens in an election period? In the run-up to an election, politicians must canvas for votes and campaign on the policies they would implement if elected. As anyone familiar with political discourse in this country in the last half century can attest, that process can be harsh and unforgiving. At the same time, the law remains constant. Those in the Government of the day remain responsible for exercising the statutory powers and duties which Parliament has imposed on them. They must continue to do so lawfully in the public interest. How can they do so without making the exercise of public power an inappropriate electioneering tool, and how can civil servants and similar office holders carry out their essential work without being drawn into the political fray?

The answer lies in the concept of “pre-election sensitivity” or the “pre-election period”[2].

The term is used to describe the essentially pragmatic convention which has evolved in the British political system to safeguard the exercise of public power from inappropriate interference in election periods. Oft cited, seldom explained, the term is important but obscure. That is at least in part because of the absence of consideration in the law reports. The only case which has examined the point as a matter of principle is R (ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC (Admin) 1618[3].

The ClientEarth litigation[4]

The ClientEarth litigation was well-timed, at least in so far as it has proven to be a useful tool for understanding the legal limits of the application of the pre-election period convention. ClientEarth had challenged by judicial review the legal adequacy of the Secretary of State’s 2015 Air Quality Plan (“AQP”). It was said to fail to comply with Article 23(1) of the Air Quality Directive 2008 and its domestic manifestation, regulation 26(2) of the Air Quality Standards Regulations 2010. Garnham J held that, on its proper construction, Article 23 of the Directive meant that the Secretary of State was required to seek to achieve compliance of the Directive by the soonest date possible, that she must choose a route to that objective which reduced nitrogen dioxide as quickly as possible and that she must take steps which meant meeting the values prescribed by the Directive were not just possible but likely. On 22 November 2016, after further submissions from the parties, Garnham J ordered the Secretary of State to publish a draft modified Plan by 4 pm on 24 April 2017 and a final Plan by 31 July 2017. Of some significance for the arguments that followed, 24 April 2017 was the date suggested by the Secretary of State.

But politics, like time, waits for no man – and certainly not the Secretary of State. Local elections were scheduled to take place on 4 May 2017. On 12 April 2017, the Cabinet Office published guidance on conduct during the run-up to the local government election and, in particular, the approach to the announcement of Government decisions which might have a bearing on the elections in the three-week “period of sensitivity” running from 13 April 2017. In consequence, the Secretary of State applied on 13 April 2017 for an extension of time for the publication of the plan to 9 May 2017.

That was not, though, the end of matters. On 18 April 2017, before the application had been considered, the Prime Minister announced that the Government would seek approval from the House of Commons for a general election to be held on 8 June 2017. The proposal was approved by the House of Commons the following day. On 20 April 2017, the Cabinet Office published guidance in relation to the pre-election period to come into effect at midnight on 21 April and run until the election on 8 June. On 21 April, the Secretary of State, therefore, applied for a fresh variation of Garnham J’s order suggesting that the draft AQP be published on 30 June 2017 and the final AQP on 15 September 2017[5]. The justification was said to be “on account of Purdah restrictions in place as a result of the forthcoming local and general elections”: [8]. Although dated 21 April 2017, the application was served after close of business on that day, meaning that it first came to the attention of the court on Monday 24 April 2017: the date that the earlier order required publication of the draft plan.

In the context of a claim based on allegedly unlawful delay in the implementation of legally binding obligations to publish an AQP, which had already resulted in a finding that the Secretary of State had failed in her duty to produce an AQP by the soonest date possible, it might be thought that the chronology of applications and extent of delay in the implementation of the order being requested were unfortunate, to say the least. So it proved.

ClientEarth did not object to the application in relation to the local elections, but it did oppose the application relating to the general election: [12]. Garnham J determined four issues, the first of which was the nature of “purdah”. At [17], Garnham J explained that “purdah”:

“… is a word of Indian origin. It describes the curtain once used to screen Hindu or Muslim women from the sight of men or strangers. According to the Concise Oxford Dictionary, the word is used figuratively to describe the Indian system of secluding women of rank from public view.”

Applied to the domestic political domain, he explained, at [18], that it meant:

“The word has been adopted in English to describe the period before an election in which ministers, public servants, councillors and officials are expected to refrain from taking controversial decisions. That policy serves an important function in protecting the electoral process from interference, intended or accidental, by those holding elected public office. Purdah is, in effect, a self-denying ordinance imposed by local or central governments on its officers and members.”

Garnham J proceeded to explain, at [19], that:

“But "Purdah" is not a principle of law. The guidance from the Cabinet Office, to which I have referred, is directed towards government ministers, other elected officers and officials in central or local government. It is not directed towards the court, nor, consistent with the rule of law, could it be. Purdah does not amend duties imposed on ministers by statute. It does not provide ministers with a defence to proceedings in private or public law. What is set out by the Cabinet Office in the guidance is not law, it is convention. Ordinarily such convention must give way to a duty under statute or an order of the court.”

He continued:

“20. Because of the important functions it serves in safeguarding the electoral process, the concept of purdah will be carefully taken into account by the court in reaching decisions which affect central and local government in the period immediately before elections. However, it is in no sense binding on the courts. It is conceivable that breach of the rules of Purdah might found a claim in the courts against the executive. It is possible to imagine proceedings based on misconduct in public office or on breaches of legitimate expectation. That is because a breach of the rules of purdah may, conceivably, constitute a legal wrong, but enforcement of it is not a legal right vouchsafed to the Government.

21. Purdah in itself provides no defence to a failure by the Executive to comply with a court order. It provides no automatic right to an extension of time to comply with an order of the court. It is not a trump card to be deployed at will by one litigant.”

Applying those principles, Garnham J accepted that there was a risk of influencing the local elections because the plan focused on the roles local authorities would play in reducing nitrogen dioxide emissions, and a risk of influence the general election because the AQP might be controversial in constituencies where the proposals might bite: [28]-[29]. He rejected, however, a submission that there was a risk of the Government being seen to cherry-pick consultations. It was the court, not the Government, which was picking the consultations to be commenced: [30]. While there was some force in the suggestion that it was desirable for the public to be able to focus their attention on the election, rather than being distracted by the air quality consultation, this carried only modest weight and it was important not to underestimate the ability of the electorate to understand both issues: [33].

Garnham J observed that if the plan was published and consultation commenced during the pre-election period, there could be no criticism of the Secretary of State. None of these actions would be as a result of the Secretary of State’s own initiative or any decision she had taken; rather, she would be publishing it because she was ordered to do so by the Court and “she is as obliged to comply with orders of this court as any other litigant”: [34]. The Secretary of State argued that there was also a real risk that the quality of the process would be substantially undermined because the Government could not publicise it or hold stakeholder events. Garnham J accepted that there was some risk of constraint in this respect. Although the consultation period would continue after the election, the limitation on Government involvement would adversely affect the quality of the process to some modest degree and so fell to be taken into account: [35].

While there was some force in the point that controversial decisions should be left for the new incoming government, and it was generally preferable to avoid making policy decisions in the run-up to an election because of the risk of restraining the options of the incoming regime, the incoming government would face the same issues. The Directive and Regulations would remain in force, as would the applicable case-law. Incoming governments were frequently required to deal with issues left unresolved by their predecessors: [38]-[40]. While the general principles in the Cabinet Office Guidance did, therefore, apply, they were not overwhelming: [41]. The case was the strongest in relation to the local elections. Their role on the consultation was crucial and it would have been unfortunate for them to have been inhibited in their response to the draft plan; in addition, the change of timetable did not threaten the date of publication or final plan: [42].

Garnham J noted that the Guidance stated that there were exceptional circumstances permitting consultations during the run-up to an election in exceptional circumstances making the launch essential. Here, Garnham J considered that test to be satisfied for three reasons:

The court had ordered the publication of the draft plan and the Secretary of State was obliged to comply with the order. Good reason was needed to amend the timetable: [44].
There was a subsisting duty under domestic and EU law to achieve compliance with the law by the soonest possible date. There was a strong case for earlier publication of the draft and then final report: [45].
Perhaps most importantly, the steps were needed to protect public health. This was the crux of the case: [46]. The continued failure to comply with the Directive and Regulations created a significant threat to public health: [47]. The situation revealed by the mortality statistics alone could properly be said to constitute circumstances which were wholly exceptional and made immediate publication of the plan essential.

Perhaps unsurprisingly, Garnham J was unimpressed by arguments that late publication of the plan would not mean late implementation of the plan and rejected them: [53]. It was of no assistance to the Secretary of State that the Department would be engaging with local authorities in the interim: [54].

All of this meant that there were good reasons for launching a consultation during the pre-election period. Finally, against that background, Garnham J considered whether to exercise his discretion in favour of a grant of an extension of time. For the reasons set out at [57]-[65], he considered that the factors in favour of refusing an extension plainly outweighed those in favour of its grant: [66]. He was prepared to extend time to enable the local elections to be conducted, and new councillors to take up their posts, before the draft was published, but he declined to extend it to cover the general election period: [69]. The draft plan had to be published the day after the local elections but the date of publication of the final plan remained unchanged: [70].

The current Cabinet Office Guidance

The Cabinet Office Guidance considered in ClientEarth is directed at civil servants but, given their role in implementing the policies of the government of the day, its application was obviously central to the ability of the Secretary of State to carry out her own obligations. The current version of the Guidance was updated on 23 May 2024, in the light of the announcement of the general election. It takes effect from 00:01 on 25 May 2024, the beginning of the “election period”, and continues until the election on 4 July 2024. It indicates at the outset that the Prime Minister will be writing separately to Ministers to advise them of the need to adhere to the Guidance and uphold the impartiality of the Civil Service: para. 1. It applies to all UK civil servants, and the board members and staff of non-departmental public bodies (“NDPB”) and other arms’ length bodies: para. 2.

The central principle in the Guidance is set out in Paragraph 3, which explains that:

“During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business (which includes routine business necessary to ensure the continued smooth functioning of government and public services) must be allowed to continue. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy 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 would not be detrimental to the national interest or wasteful of public money.”

The Guidance might reasonable be summarised then in three propositions:

Business as usual – the need to govern does not stop; but
Exercise discretion over new actions of a continuing or long-term character; and
Postpone until after the election decisions on matters of policy on which a new government be expected to want to take the opportunity to take a different view.

The underlying principles are described as an extension of those that apply at all times under the Civil Service Code, to which civil servants are referred in the Guidance, and reference is also made to the Ministerial Code: para. 5. Those principles are distilled as follows at para. 5:

The basic principle for civil servants is not to undertake any activity that could call into question their political impartiality or that could give rise to criticism that public resources are being used for party political purposes.
Departmental and NDPB activity should not be seen to compete with the election campaign for public attention.
Ministers must not use government resources for party political purposes and must uphold the political impartiality of the Civil Service.

More detailed guidance is provided in 15 sections, Sections A-O.

The balance is plainly not an easy or entirely straightforward one. As para. 14 of Section A explains, Ministers continue to be in charge of departments. As such, it is reasonable for departments to continue to provide support for any necessary governmental functions and receive any policy advice or factual briefing necessary to resolve issues that cannot be deferred until after the election. Further, at para. 15, it is explained that Departments can check statements for factual accuracy and consistency with established government policy, but officials should not be asked to devise new arguments or cost policies for use in the election campaign. Nor should they undertake costings or analysis of Opposition policies during the election period.

The remaining sections are all important and provide detailed guidance to civil servants (and, indirectly, politicians) on how to continue to transact government business during the pre-election period, but perhaps the two of most interest to lawyers, given their potential significance for the external scrutiny of government action, are Section G, Government Decisions, and Section J, Guidance on Consultations during an election period.

Section G on Government Decisions reiterates that Government retains its responsibility to govern during an election campaign and Ministers remain in charge of their departments. Essential business including routine business necessary to ensure the continued smooth functioning of government and public services must be carried on. However:

“… it is customary for Ministers to observe discretion in initiating any action of a continuing or long term character. Decisions on matters of policy, and other issues such as large and/or contentious commercial contracts, 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 would not be detrimental to the national interest or wasteful of public money.”

The contents of Section J on consultations during an election period reflect much of the debate and decision in ClientEarth. The advice covers four scenarios: new consultations, ongoing consultations, mitigation for the impact of Guidance on ongoing consultations, and those areas which should remain unaffected.

In general, new public consultations should not be launched during the election period. If exceptional circumstances require a consultation to be launched, permission must be sought from the Propriety and Ethics Team in the Cabinet Office. The example, reflecting Garnham J’s analysis in ClientEarth, is of the need to safeguard public health.

Where a consultation is ongoing at the time the Guidance comes into effect, it should continue as normal, but departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process.

Where the impact of these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. Examples are prolonging the consultation and putting out extra publicity after the election period to revive interest. The latter example is qualified by the need to consult any new Minister.

Some consultations will expect to be unaffected: for example, those aimed solely at professional groups and which carry no publicity. Each case will turn on its facts and some will require no remedial action. During the election period, departments are reminded that they may continue to receive and analyse responses with a view putting proposals to the incoming government but they should not make any statement or generate publicity during this period.

Some concluding thoughts

Garnham J’s overall conclusions in ClientEarth were threefold [68]:

Purdah was not a rule of law which overrides the duty on the Government to comply with its statutory duty and the orders of the court.
Properly understood, the general principles set out in the Cabinet Office Guidance applied but did not in themselves establish that the publication of the draft AQP before the general election would be unacceptable.
In any event, the case fell within the exceptions provided for in the Guidance.

Those three conclusions aptly summarise the effect of what is an important judgment containing a rare but interesting analysis of the effect of the principles governing the pre-election conduct of Government. Its correctness in principle is well-illustrated by the fact that the latest version of the Cabinet Office Guidance reflects Garnham J’s analysis closely. The judgment has survived the test of the last few years of regular electioneering.

An interesting feature of ClientEarth is that the Guidance was used by the Secretary of State as a shield against the sword of the court’s order; or, more prosaically, as attempted justification for relief from a court obligation otherwise requiring compliance. In effect, the Secretary of State’s argument was that her hands were tied and, therefore, the court should release her from the obligation she otherwise had to fulfil. Garnham J rejected that suggested.

But how can a government Minister be held accountable for a breach of the Guidance? It would appear that the Guidance is closely policed by opposition parties and the Press. In April 2023, the Prime Minister himself was reported to the Cabinet Secretary by the Liberal Democrats for allegedly breaching the Guidance by making an announcement about maths teaching in the local government pre-election period[6]. Similarly, in the run-up to the December 2019 Election, the Rt Hon Sajid Javid MP, when Chancellor, asked the Treasury to calculate the cost of nine Labour policies, which he planned to publish – until a complaint by the Shadow Chancellor led the Cabinet Secretary, Sir Mark Sedwill, to block the move following a Cabinet meeting[7]. In the same election campaign, Boris Johnson faced criticism for a series of Facebook advertisements targeting marginal constituencies as being in breach of pre-election period rules. The advertisements were withdrawn once the issue came to light[8]. Such instances of regulation through Opposition complaints and Cabinet Office intervention demonstrate that even if the convention is not always respected, it is at least capable of effective enforcement without recourse to the courts.

But the judgment is also reflective of a wider theme in public law. The proliferation of policy and guidance as part of the growth of modern judicial review has led to a renewed focus on the duties of decision-makers when promulgating such documents and the circumstances in which they will be liable to challenge in judicial review proceedings. The public law world has changed almost beyond recognition since the House of Lords gave judgment in Gillick v. West Norfolk & Wisbech AHA [1986] AC 112; but the orthodoxy of Gillick in the field of the law on policies was restated in R (A) v. Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 WLR 3931. In R (All the Citizens) v. Secretary of State for Digital, Culture, Media and Sport [2022] EWHC 960 (Admin), [2022] 1 WLR 3748, the Divisional Court (Singh LJ and Johnson J) emphasised that policies are different from law and do not create legal rights as such. They often promoted good administration. There are situations in which a failure to comply with a policy without good reason will constitute a breach of public law. To date, those cases have been concerned with interferences with individual rights. But public law has not reached the stage at which all administrative policies have become enforceable as a matter of law. That is unsurprising: policies come in many forms and their content is wide-ranging. Some policies were essentially inward facing and governed the way in which a public authority would conduct its own affairs. Such policies did not even concern the exercise of public powers. So in essence, there are policies and… there are policies.

Re-reading ClientEarth through the prism of last week’s surprise election announcement brings those principled analyses and restatements to mind. Garnham J’s judgment was, in many ways, ahead of its time. The core of his reasoning lies precisely in the principle that policy (and guidance) is not law. However, obvious that might seem as a statement of fact, the legal reality might have appeared somewhat different from the proliferation of policy challenges in recent years. ClientEarth recognises the democratic necessity for central Government guidance in the form of that promulgated by the Cabinet Office. But the power of the analysis lies in recognising that it is just that: not a rule but a guide[9]. The pre-election period is not regulated by legislation. As such, an order of the court retains all its force against a central government – or indeed any public authority – defendant. The circumstances which the Guidance are intended to regulate may well be influential in the setting of court timetables or, as in ClientEarth, the consideration of applications to amend such timetables. That is unsurprising: the rationale behind the guidance is the need to safeguard the democratic process and ensure a level playing field for political debate. In any discretionary assessment by the court, they will be an important material consideration, as they were for Garnham J. But they are not in any sense a trump card. The court’s order will necessarily prevail. Like so much of constitutional principle and practice in the UK, they are a convention which reflects a compromise. But as the judgment in ClientEarth demonstrates, they cannot override the public law obligations which the court is there to enforce and uphold. It will be interesting to see whether, and if so how, the convention and Guidance are tested by the events of the next six weeks.

This blog was written by David Blundell KC

-------------

[1] “Had we but world enough and time,
This coyness, Lady, were no crime.” From “To his Coy Mistress” by Andrew Marvell. Although published (posthumously) in 1681, the poem was, appropriately for an article about constitutional change, written either just before or during the Interregnum of 1649-1660.

[2] Although the term “purdah” was once in common usage in this context, it is now widely considered to be inappropriate. See Neil Johnson’s helpful and comprehensive House of Commons Library Research Briefing paper Pre-election period of sensitivity published on 24 May 2024 for an explanation for the history and development of the terminology: SN05262.pdf (parliament.uk) (last accessed on 28 May 2024). The term “purdah” is only used here when quoting directly from an earlier source; otherwise, the terms “pre-election period” and “pre-election sensitivity” are used.

[3] For an interesting example of how allegations of inappropriate political interference during the pre-election period have made it into the pages of the law reports, albeit without any detailed analysis of the nature or effect of the convention, see R (Lewis) v. Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83, still one of the leading cases on bias and pre-determination. The case concerned the determination of a planning application in the pre-election period.

[4] For an interesting contemporary analysis of ClientEarth, see Ruth Harriett Kennedy, The scope and effect of purdah JR 2017, 22(4), 374-379.

[5] The application was supported by a witness statement from Sue Gray, then a Director General in the Cabinet Office, and now Chief of Staff to the Rt Hon Keir Starmer MP as leader of Her Majesty’s Opposition.

[6] See Rishi Sunak Could Be in More Trouble as Maths Announcement May Have Broken Election Rules – Byline Times, cited in “The pre-election period: Purdah on the dancefloor” Alys Thomas, 1 February 2024 at The pre-election period: Purdah on the dancefloor - The Constitution Society (consoc.org.uk) (last accessed 27 May 2024).

[7] See Blow for Sajid Javid as Treasury blocked from publishing cost of Labour policies (politicshome.com) in Purdah communication and resource rules (influenceonline.co.uk) (last accessed 27 May 2024) and Thomas, ibid.

[8] See Purdah communication and resource rules (influenceonline.co.uk) (last accessed 27 May 2024) and Thomas, ibid.

[9] Compare Sedley LJ in First Secretary of State v. Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520, at [16]: “a policy is not a rule but a guide”.