With the next general election looming, our Public Law and Regulation team considers the implications for decision-making by central and local government and other public authorities.
The Convention - What is it?
'Purdah' is a political convention, which formally applies to government ministers and civil servants in central government during the period immediately before a general election.
During a period of purdah, ministers and civil servants will refrain from taking decisions or making policy announcements which are significant and may be politically contentious.
Purdah normally runs during the period between the announcement of an election and the date the election is held. The length of this pre-election period varies, but it must last at least 17 working days (three and a half weeks), being the minimum time between the date that the current Parliament is dissolved by proclamation of the Queen and polling day.
The uncertain element relates to the date on which the Queen will be asked to dissolve Parliament. This will commonly be after the date when the election is announced, leaving a short period during which time the government will seek agreement to bills going through the House of Commons in a parliamentary 'wash-up'. In 1997 there was a lapse of three weeks between the election announcement and the dissolution of Parliament, giving rise to a six week period of purdah.
Background - Why does it apply?
The convention of purdah originates with the Treasury, where it has long been established that the Chancellor of the Exchequer should avoid discussing a budget prior to its official announcement in order to prevent any repercussions in financial markets.
By extension, the principle of avoiding active engagement on politically sensitive matters has been applied to pre-election periods. This facilitates democratic due process, since the governing party does not use its power for potentially unfair electoral advantage, nor commit its successor to significant decisions that it would not wish to have made. It also assists in maintaining the impartiality of the civil service. Civil servants implement government policy; but where that policy may soon change, as at the time of an election, the civil service is relieved of this duty in relation to non-essential policy which might bind a future government that is in disagreement with the incumbent's policy.
Post-Purdah - What happens after the election?
Where a decision has not been made before an election is called, and cannot be made during the pre-election period by virtue of purdah, it should be noted that there will also continue to be a period of delay after the election. In normal circumstances, it can take approximately two weeks for MPs to be sworn in, and an equivalent time for all ministerial posts to be allocated. During this time, major departmental decisions will not be made.
Even once ministers have been sworn in as MPs and appointed to ministerial office, there is likely to be some further delay while those who are new to their posts are briefed by civil servants.
In the event of a hung Parliament - a quite plausible outcome of a general election on this occasion - all of these time periods could be further attenuated as the process of forming a government will take longer.
In total, therefore, the period of pre- and post-election delay in relation to any decision that is subject to purdah can be expected to be in the range of five to ten weeks.
The impact of the Convention on...
a) Central government
During a period of purdah ministers and civil servants will continue to take decisions on a 'business as usual' basis. However, the convention involves a 'self-denying ordinance', where decisions will not be taken or policies announced if they are, or may be, significant in their effects and politically contentious.
This is the subject of Cabinet Office General Election Guidance. The Guidance for the 2005 election (which revised guidance for the 2010 election, not yet published, is likely to follow closely) sums up the position as follows:
"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 and other issues such as large and/or contentious procurement 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 postponement would not be detrimental to the national interest or wasteful of public money."
The self-denying ordinance is necessarily applied on a case-by-case basis. If there is any doubt as to whether purdah precludes an action from being taken during the pre-election period, it will typically be resolved in favour of delaying that action until after the election.
While it has no legal force, purdah in central government is treated as having considerable moral authority. Subject to a judgment as to whether it applies in any given case, it will be followed.
b) Local government
As the convention of observing purdah is not codified in law, it is subject to extension by bodies which choose to adopt it. In particular, since purdah is a 'self-denying ordinance', it is within the power of local authorities to adopt their own version of the convention in the period leading up to local elections.
However, the application of purdah in local government can be more unpredictable than in central government. Southwark Borough Council indicates that:
"Purdah can end up being treated very differently by different authorities. This can sometimes be justifiable because of local conditions, but clearer guidance would be welcome."
As with central government, 'business as usual' will always continue, but on certain issues a local authority may act cautiously and delay decision-making until after the election has concluded.
Moreover, while purdah itself does not have the force of law, there is an indication that some local authorities are concerned that decisions made during a pre-election period may be subject to an increased risk of challenge. Surrey County Council states:
"There is no statutory restriction on the council's decision-making during the election campaign. [...] However...it may be that while the councils' decision-making can carry on other factors may well limit it...The profile of issues will be increased in this period and could have more prominence than at other times. This may distort decision-making and create a risk that the decision will be made on party political grounds rather than on its merits and, therefore, it is challengeable."
A recent challenge on this basis was made in the case of R (on the application of Lewis) v Persimmon Homes Teesside Ltd (2008). The case was unsuccessful in the Court of Appeal, but it indicates the enhanced scrutiny which potential claimants may give to decisions made during a pre-election period, and may well provoke greater conservatism on the part of local authorities.
c) Other Public Authorities
The UK body politic in 2010 includes a wide range of other public authorities which are not managed by elected officials, many of them in fact established precisely to ensure that their decision-making is independent of political control. For this group - which includes all regulators, NHS bodies and non-departmental public bodies - the convention of purdah is obviously of no direct application.
Nonetheless, while purdah should not, in principle, apply to them, many of these bodies in practice observe it to some degree. The extent to which they do so is necessarily even more unpredictable than in the case of local government. But at the very least they can be expected to be sensitive about taking action that may compete with candidates for the attention of the public or influence support for any political party or candidate.
In this context it should be borne in mind that many decisions - even if they are made with complete impartiality and beyond the direct reach of party politics - can be politically contentious in the heightened atmosphere of an election campaign.
Moreover, it is quite common for public authorities to avoid even commencing any new consultations during a period of purdah (though consultations already in progress at the time of the election announcement will continue as normal).
Commentary
Purdah is a classic convention of British governance - unwritten, of uncertain status, and of imprecise reach and effect. It needs to be understood by reference to the way public bodies behave in practice rather than to any clear rules governing their actions.
What is clear is that a practice which started in Whitehall with a limited purpose confined to central government has grown organically to extend to local government and the wider set of public authorities which now exercise executive power in the UK. Unfortunately, the precise ways in which it will be interpreted and applied are likely to differ as between public bodies and are therefore highly unpredictable.
It is clear, for instance, that no government should commit during the pre-election period to acquiring at vast expense the IT for a new identity card scheme, when an incoming government may wish to have nothing to do with that policy. But should the election have any bearing on decisions - if they are not a matter of national party politics - to close a school, approve a new drug for use on the NHS, set limits on utility prices, build a new rail facility, or enter into a local government outsourcing contract?
Whether or not the convention should have been extended this far, the reality is that the now diffuse concept of purdah is likely to create, if not a hiatus, then at least a significant slow-down in the business of normal government during (and in a number of cases after) the general election campaign.
Those who are dealing with public authorities on projects for which the timing is sensitive ought therefore to consider now the potential impact of purdah, clarify in discussion with the relevant public body whether it will be applied in their case, and take necessary steps to mitigate any adverse effect it might have.
In this context it should be noted that -
- The term of the present Parliament will expire on 10 May 2010. The latest possible date for the next general election will be 3 June 2010.
- However, an election may be called and Parliament dissolved at any time before 10 May 2010. As local elections will take place on 6 May 2010, it has been widely anticipated that the general election will be set to coincide with that date. The Secretary of State for Defence also appeared to let slip in a television interview that 6 May 2010 was the date currently in the mind of the Prime Minister.
- If the general election is to take place on 6 May 2010, purdah could commence as early as 24 March 2010.