Last week, Rhion Jones considered the imminent General Election and the application of the (inappropriately-worded) purdah convention. Will purdah affect your consultation? In this update, he reflects on some of the issues that will concern public consultation professionals.
Have you noticed the row about the failure of the Government to release a cross-party Parliamentary Report on Russian influence on our politics? It has been rumbling for a while with protagonists arguing for or against publication. Suddenly there is an additional reason to withhold it: “purdah” !
It is the same issue as that which went to the High Court at the same pre-election stage in 2017. In the Clientearth  case, Andrea Leadsom, as DEFRA Secretary, sought the postponement of a Court order forcing her to publish a delayed Air Quality plan. The Judge allowed purdah to apply so as to delay beyond the local elections in May, but declined to allow a further postponement to cover the June General Election. Critics suggested that the Government’s purpose had little to do with the proprieties of the pre-election period, and more with avoiding political embarrassment at the time of an election.
In recent days, organisations have been taking decisions about planned or current public consultations. Hundreds of consultations which would otherwise have been announced or launched in the coming weeks will have been postponed, probably to January. Previous Guidance has allowed exemptions for urgent issues – especially if they are related to public health and, in general, consultations that are already underway can continue. However, they are meant to be ‘lower key’ to attract less attention and not distract people from the alleged excitement of the election itself!
Does this sound realistic to you? Is the political discourse in your town so fragile that a controversial consultation will seriously disrupt it? Do we really need to cancel that long-planned public meeting on car parks? Is it necessary to withdraw the social media content urging people to respond to the consultation about the new train station? Is it even necessary to extend the duration of consultations because potential respondents will be too busy in the coming weeks to find time to respond?
Expressed in those terms, it is easy to see the whole convention as a politicians’ protection scam. Telling people “We cannot possibly discuss this controversial matter because there’s an election on …” seems totally counter-intuitive. Try announcing online – that the debate on a particular issue is suspended on social media because it might contaminate the election debate! Good luck with that one. Surely it is at a time of an election that we should be doing everything possible to engage people on matters of importance.
The Government’s Guidance also cautions against publicising the results of a consultation. Even if we accept that there is a case for not announcing controversial decisions – the outcome of a consultation, surely there is little reason to refrain from publishing the output. After all, that is merely reporting factually on what consultees have said.
Which brings us back to the Government’s reluctance to publish sensitive material.
Supposing a major research project has taken years. Its Report is ready for publication. Does ‘purdah’ mean it should be postponed? Or do we only defer those that contain proposals or recommendations that amount to significant policy initiatives? Supposing the recent initial Report on the Grenfell Towers fire had become ready for publication this week. Would there have been a bureaucratic urge to delay?
The grey area that is ‘purdah’ exposes us to the risk that politicians, civil servants and public officials can manipulate the system for their own convenience. What is and what is not released during an election campaign can obviously have an enormous influence. Witness the world-changing impact that may have been caused days before the last US Presidential Election when the FBI Director disclosed that the case against Hilary Clinton was to be re-opened!
No-one is saying that the reorganisation of Accident and Emergency services in a northern city is as traumatic (sorry!) Or that Government policy towards this or that issue has the same sensitivity. However, there are dangers that a blanket ban on Reports and publications on controversial matters just reinforces cynicism about public affairs in general and politicians in particular.
Before making decisions to delay consultations or to suppress publicity about existing consultations, I urge Institute members and supporters to consider carefully whether it is genuinely necessary to take such steps. “Purdah” may be conventional wisdom but here is one author that thinks it may well be beyond its sell-by date.
 R (ex parte Clientearth) v Sec of State for Environment, Food & Rural Affairs,  EWHC B12