The Commencement of the Pre-Election Period ('Purdah')

06 November 2019

As of Wednesday 6 November 2019, Parliament is dissolved and the pre-election period of sensitivity officially begins. This period is more commonly known and referred to as 'purdah'. It covers the period of time before the General Election takes place - in this instance, on Thursday 12 December 2019 - and imposes restrictions on the practice of government business.



The Application of Purdah

Purdah is a political convention which is based upon accepted customary behaviours. Essentially, these form the basis of a code of conduct concerning what government can and cannot do during the pre-election period. However, they are not codified in law, nor regulated by statute.

The closest there is to an official statement of what the convention entails is found in the Cabinet Office General Election Guidance 2019 (published on 4 November 2019) which provides that -

"During an election campaign the Government retains its responsibility to govern 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."

As the Guidance implies, purdah is often associated with a degree of uncertainty. The convention is highly fact sensitive, and its precise limits are not always clear in any case.

As indicated, while it must be ensured that government business runs as usual and duties are fulfilled, other matters which are not part of normal business - specifically, proposals for or decisions regarding new policy, or high value or politically contentious contracts - should not normally be made during the pre-election period. But this is subject to an exception where delay would not be in the public interest.

In reality, government tends to act quite conservatively in order to avoid engaging in behaviour which may be considered a breach of the convention. Moreover, purdah is no longer considered exclusively applicable to ministerial departments of government, but is generally observed by a much wider range of public bodies such as regulators and NHS agencies.

In practice, therefore, many major decisions or announcements that might otherwise have been made during the pre-election period are likely to be delayed until after the election. Anyone with a commercial or other interest in decisions made by public bodies during this period should take this into account.

Commentary

Purdah is a classic UK convention of government, which operates on the basis of an understanding of good conduct; namely, when public bodies ought to refrain from exercising their powers, even though they could lawfully do so. It is a principle of restraint, no less powerful in practice for not being codified in, or enforced under, law.

There are two reasons for the convention:

  1. refraining from making significant decisions prevents interference in, or distraction from, the election campaign; and
  2. post-election, a new government may have different opinions and plans of its own, meaning that it would not be appropriate for new commitments to be made during the pre-election period that would bind the hands of the next administration.

The Fixed-term Parliaments Act 2011 briefly held out the prospect that general elections would be held at strict five-year intervals, allowing government and other public bodies to plan for them in advance so that making big decisions during the pre-election period was unnecessary. In this world purdah would, in practice, have become less important.

However, the Early Parliamentary General Election Act 2019 has now overridden the provisions of the earlier legislation (the long-term future of which must now be in question) to deliver a general election at very short notice. Though not politically unexpected, this development will interfere with the business of those public bodies which had long planned to make major decisions before the end of the year, and must now consider carefully whether the convention of purdah prevents this. Many of them, and any of the non-governmental bodies expecting to rely on those decisions, will have had insufficient time to prepare an alternative timetable.

Furthermore, due to the complexities of the current political environment, the outcome of this general election is more than usually uncertain. It is not difficult to envisage a newly-elected Parliament which fails to deliver a working majority for any individual party, leading to a period of government formation which could extend for several days up to, or even beyond, Christmas. If so, the understanding is that purdah will in practice extend until a new government is formed.

Consequently, it would be unsafe for anyone affected by it during the pre-election period to plan on the basis that it will definitively end on 12 December 2019.


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