Behind the curtain

As the general election kicks off, James Goudie QC highlights a 2017 High Court ruling on the status of 'purdah' and the business that can and cannot be conducted while it applies

“Purdah” is upon us. It lasts until 12 December 2019, only shortly before the Christmas/New Year break. It is as well to recall a case noted in this bulletin on 11 May 2017, the decision of Garnham J in relation to the last General Election, on 8 June 2017, announced on 18 April 2017, and local government elections which were to take place on 4 May 2017,  R (Client Earth) v SoS for Environment etc (2017) EWHC 1618 (Admin). The main point that the Judge made was that “purdah” is not a rule of law, and that it does not, and did not in that case, override obligations to comply with statutory duties.

Garnham J addressed the nature of “purdah”. He said (emphasis added):

“It is necessary to identify what “Purdah” is and, as importantly, what it is not.

“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.

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.

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.

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.

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.”

Garnham J found that there were aspects of purdah guidance that were applicable but that there were “good reasons and exceptional circumstances” for launching a consultation about air quality during the purdah period even though to a modest degree the launch of the consultation would risk influencing both local and general elections and even though to some extent the limitation on government involvement would adversely affect the quality of the consultation process. 

Purdah does not mean that it is impossible to publish a plan. There should not be delays which lead to a continued threat to public health.

So, purdah is a period of sensitivity. It is the period before an Election in which consideration should be given to postponing controversial decisions until after the purdah period.

As Garnham J said, purdah:-

“serves an important function in protecting the electoral process from interference, intended or accidental, by those holding elected public office”.

As Garnham J further said:-

“Because of the important function 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.”

Garnham J added that it is conceivable that breach of purdah may:

(1)       Constitute a legal wrong;

(2)       Found a claim in the Courts; and/or

(3)       Lead to proceedings based on –

            (i)        misconduct in public office, and/or

            (ii)       breaches of legitimate expectation.

In order for business to be conducted during a Purdah period:

(1)       It must be “business as usual”; and/or

(2)       It must be uncontroversial; and/or

(3)       There must be “good reasons” or “exceptional circumstances”, such as urgency.

James Goudie QC is a barrister and Joint Head of Chambers at 11KBW.