In the pursuit of free and fair elections, the practise of observing a period of ‘pre-election sensitivity’ (previously known as ‘purdah’) has long been respected by government ministers, central government officials and civil servants. Beyond government and civil servants, other organisations are also often alive to the risk of appearing to be politically biased during the weeks preceding an election and can have questions about whether they are technically subject to rules around ‘pre-election sensitivity’. In this article we look at why the pre-election sensitivity is observed and who – increasingly – (and with what effect) is observing it.
(i) What is ‘pre-election sensitivity’?
The purpose of the period of pre-election sensitivity is to protect the integrity of an election campaign and prevent undue influence on the electorate. Governed in the main by convention, the ‘rules’ and ‘accepted practice’ in this period are not legally binding but do carry considerable moral authority. Once the Prime Minister announces an election, guidance is issued by the Cabinet Office for ministers and civil servants to follow.
In short, whilst the government retains responsibility to govern, it must avoid making decisions which might be perceived as providing an electoral advantage to any party, and on which a new government might (very shortly) wish to take a different view.[i]
The practice is said to have originated from established Treasury precedent where the Chancellor of the Exchequer would not discuss the content of their budget prior to its presentation to parliament, to protect against undue influence on the financial markets.
(ii) Who does it apply to?
Central government decision makers are the primary focus of pre-election sensitivity: the Cabinet Office guidance applies to government departments and their employees (civil servants). However, the Cabinet Office guidance also states that non-departmental public bodies and other public sector bodies should avoid becoming involved in party political controversy and extends the application of the guidance to the board members and staff of Non-Departmental Public Bodies (NDPBs) and other arms’ length bodies.
The Cabinet Office guidance doesn’t formally extend to local authorities. However, they are subject to ‘The Code of Recommended Practice on Local Authority Publicity 2011’, which stems from statutory publicity restrictions in the Local Government Act 1986. The Code of Recommended Practice places a particular focus on periods of (heightened) sensitivity, and states that councils should exercise caution when considering “the use of council facilities and resources; the member’s code of conduct, developing new policies and holding of events (including some meetings) featuring elected officials” during this period.
With ever greater delegation of governmental responsibilities to non-departmental public bodies, an increasing number ‘self-censor’ during the pre-election period.
For example, in the run up to the 2019 election the Chief Executive of the NHS wrote to all NHS bodies providing guidance on the pre-election period, and the National Institute for Health and Clinical Excellent (NICE) outlined they would be following the civil service principles on communication.
Public bodies may understandably wish to be cautious in their approach to avoid any risk of criticism or legal challenge; preventing any decisions being given undue prominence or being construed (unfairly) as party-politically motivated.
However, the most cautious approach of halting the majority of their decision-making could be criticised for its impact on efficient administration, leading to delays in ‘business as usual’ matters or cost inefficiencies. For example, a public body which anticipated launching consultations or granting planning permission in this period could be criticised if it determined that it would avoid doing so entirely.
With the announcement of this election coming as a surprise to most, public bodies may be finding this pre-election period harder to navigate than previous periods as they may not have been long preparing for it. Public bodies may have found themselves in a position of being on the cusp of launching an initiative but may now be uncertain whether they can or should proceed.
Comfort should be taken from the fact that whilst there may be enhanced scrutiny of decisions during this period, the courts have taken the view that decisions made during the pre-election period are not by virtue of their timing assumed to be unlawful,[i] and pre-election sensitivity does not override statutory obligations[ii] to carry out responsibilities.
The pre-election period of sensitivity does not apply to charities and other campaigners, unless they are also a public body. However, other rules and guidance stemming from charity law do apply to charities and other campaigners around this time – you can read more in our General Election 2024 campaigning resources hub.
If your organisation requires any assistance with the issues covered in this article, please get in touch.
[i] Cabinet Office guidance – May 2024
[i] R (Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746
[ii] R (Client Earth) v SoS for Environment etc (2017) EWHC 1618 (Admin)