Purdah: Government should obey the law in the run-up to an election

16 May 2017 by David Hart KC

R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here

Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough.  The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.

The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.

The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.

But the only justification for the delay was Purdah.

The judge explained that the Indian word Purdah has been adopted by our civil servants, and the Cabinet Office in particular, to apply to a period of grace before an election in which ministers and all public servants are expected to refrain from taking controversial decisions.

The general intent is clear and beneficial – to stop public officials being directed by the party of the day to interfere with the electoral process. So, governmental hands-off in the sensitive period.

But Garnham J proceeded to explain what Purdah was not. It was not a principle of law, nor was it directed to the courts whose orders Government may have been ordered to comply with. In a robust statement of the rule of law, he said

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.

But the judge did acknowledge that the declaration of Purdah should have some limited effect. He saw the force of the argument that the proposal should not be released until after 4 May (a week after the hearing) because of its possible effect on the local elections scheduled for 4 May, but was unpersuaded that it should be postponed until after the snap election on 8 June – called by Government.

The proposal in issue was no more than a consultation draft. Here Government had to run a fine line. Consultation drafts are not meant to be firm decisions by those generating them – otherwise the whole process becomes a sham because Government has decided to do what it wants to do already before it asks other people what they think. And yet Purdah is supposed to be a freeze on controversial decisions.

There is a little bit of a tension between the concepts – at the same time, being controversial and being open-minded.

Conclusion

We now know what the proposal actually said, though it appears as if the judge may have been told of the gist. The sensitivity concerning the local elections is obvious. The plan (see here for all the subsequently released documents) for want of anything more convincing to say, seeks to deflects some of the obligations about emissions control from central government to local government.

We can also see that it was absolutely right for the plan to be published before the general election. City-dwellers may wish to reflect on the adequacy or otherwise of these proposals, and whether they think that local government is sufficiently briefed and resourced to comply with a long-overdue obligation by the state.

Let’s think on the other side of the coin. Not launching a consultation or report may be as politically manipulative as launching one.  So, when, as here, the report had already been drafted, the judge was absolutely right to order its production in advance of the general election.

A good example of possible news manipulation follows. On 12 April, the Cabinet Office issued its guidance in respect of the local elections (hands off). On the same day, the Department for Transport declared, in far from neutral terms (lots of jobs, all wonderful etc etc) its unequivocal support for a particular route for the new Lower Thames Crossing – think a way over Thames avoiding Dartford Crossings. This will lead to more traffic and more emissions of nitrogen dioxide, though the latter was invisible in the departmental announcement. This was governmental Good News, as it conceived it to be, though it plainly had implications for the councils who might benefit or indeed be burdened by the new scheme.

So the judge was right to be very sceptical about efforts to postpone the publication of a rather unconvincing response to a Bad News story.

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• When the court should look over the shoulder of a decision-maker
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• Supreme Court: no excuses, UK must comply with EU air pollution law
• Ping Pong: CJEU air pollution case back to the Supreme Court
• Supreme Court refers air pollution case to EU Court
• The polluted air we breathe: Supreme Court to hear case
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• UK’s failure on air pollution: who enforces?
• No right to enforce EU air pollution – just a Crackerjack pencil