The unwritten nature of the United Kingdom’s constitution may be a source of puzzlement to foreign lawyers. It is less surprising to domestic lawyers, however, that the principles regarding decision-making in the run-up to an election are generally governed by convention, rather than codified law. This means that public bodies making decisions in the pre-election period, otherwise known as purdah, must look to established practice and any relevant guidance to ensure they are acting lawfully,
In a nutshell, public law essentially applies the normal rules, established by case law, as to pre-determination, bias, failure to act etc. in the pre-election period. This however is a period of heightened sensitivity calling for particular care.
The pre-election period regulates the conduct of public bodies in the weeks preceding an election. It calls for caution over decisions which could have a bearing on matters relevant to the election, decisions for action with a long-term character (including appointments), and policy decisions on which the newly elected body could be expected to take a different view. This can also have an effect on other entities that are funded by or working with public and governmental bodies in the pre-election period, including charities and other NGOs. Campaign groups may also find their objectives delayed by the halt on developments in the pre-election period. For example, recently the government applied to the court to postpone the publication of its plan on air pollution (which was required following successful litigation brought by ClientEarth), because the deadline for publication fell within the pre-election period.
There is no set date from which the pre-election period runs, but the convention requires that particular sensitivity is taken in the three weeks preceding the election. This period may be longer for general elections, running from the announcement of the election, and may extend after the election (whilst MPs are sworn in). In the event of a hung parliament, the period will be even longer. Where decisions cannot be postponed until after the pre-election period ends, it will normally be appropriate to put in place temporary arrangements, perhaps following consultation with the opposition.
Whilst the pre-election period is often tied to dissolution of parliament, which will occur on 3 May 2017, the pre-election period began on 00:01 22 April for the 2017 general election as set by the Cabinet Office. Separately, due to the convergence of the General Election 2017 with the series of local elections in May 2017, the pre-election period for those local elections has already began for local authorities and civil servants
These conventions originated in central government, but have been applied in different forms in other contexts (such as local government). The Cabinet Office issues guidance as follows:
Guidance for broadcasters on the special impartiality requirements and other legislative requirements in the pre-election period are also issued by Ofcom.
The Code of Recommended Practice on Local Authority Publicity includes a specific section on elections, requiring particular care in the pre-election period (in addition to adherence to legislation), and warning against publicity on controversial issues or reports that identify them with political parties. It also notes that it may be necessary to suspend the hosting of material produced by third parties, or to close public forums to avoid breaching legal restrictions. Local authorities (as defined in the Local Government Act 1986 or LGA) are required to have regard to the contents of the Code by virtue of section 4 of the LGA. The Local Government Association has published guidance for local authorities on the pre-election period and their statutory responsibilities under the LGA.
In R (on the application of Lewis) v Persimmon Homes Teesside Ltd  EWCA Civ 746, the High Court had found that a decision to grant planning permission for a controversial development during the pre-election period was unlawful by reason of apparent bias or apparent predetermination. The Court of Appeal overturned this decision, finding on the evidence that the imminence of the local elections at the time of decision did not demonstrate that those who voted in favour of the planning application had closed their minds to the planning merits of the proposal. However, it was noted that the decision to hold the meeting during the pre-election period was in principle capable of justifying a decision to quash the grant of planning permission
In public law terms, public bodies taking decisions in the pre-election period must be careful to strike the balance between properly carrying out their functions and not taking decisions on controversial or sensitive issues until after the relevant election. Just using the pre-election period to justify a blanket refusal to act could be unlawful (for instance where the case for urgency overrides the need to avoid the pre-election period). Decision-makers should also be aware that, in and of itself, deferring a decision may also have political implications.
Clearly decision-makers need to be aware of these issues and should generally avoid the types of decisions caught by the pre-election period guidance and conventions. Failure to do so can render a decision unlawful. They should be reassured however that, where necessary to take action or not the kind of decision caught by the pre-election convention and guidance, decisions may be lawful and defensible, even when taken in the pre-election period.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of April 25, 2017.