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How does purdah work for government departments during a consultation?

Government departments are now in purdah. For most of them this means that many of their on-going consultations should go ahead but no new public consultations should be launched. Earlier today the Department for Transport announced that they had cancelled five remaining public meetings as part of their consultation on the South Eastern rail franchise, due to end on 23rd May, with no chance of a new date. Because of purdah, Government departments are unable to comment on issues which may impact an upcoming election. But what do the rules actually say about this?

Even though purdah is now in place, consultees should normally be given ample opportunity to comment on consultations. By cancelling the remaining five public meetings, the Government is, in effect, stopping potential consultees from putting their representations forward to the proposals outlined in the consultation document. Gunning Two clearly dictates that a consultee should have enough information at their disposal to give intelligent consideration and input into the process. By cancelling a total of five public meetings, that opportunity has been taken from them. Normally, this would be grounds for legal challenge but because this is purdah, special rules apply and the Government has every right to cancel public meetings while the consultation is still live.

According to the Cabinet Office’s ‘General election 2017: guidance for civil servants‘ document, if a consultation is already on-going, the consultation should continue as normal. However, it also says that Government Departments should “not take any steps during an election period that will compete with parliamentary candidates for the public’s attention“. An issue as controversial as rail franchising has sparked heated debates inside and outside Westminster and will certainly be on the minds of many parliamentary candidates. We might not agree with the procedure, but we can understand the Department for Transport’s decision.

The guidance document does allow the consultation to be extended or to be given extra publicity (after the election) if the consultor believes that cancelling it or postponing it might be detrimental to the consultation but it is up to the individual departments’ discretion to take these steps. In addition, those consultations that are not deemed controversial and don’t carry much publicity, can go ahead and the guidance documents should take into account the “circumstances of each consultation.” Just because a Government department has cancelled public meetings, and has stopped all publicity of the consultation, this does not mean that consultees can’t make an ‘informed decision’ (Gunning Three) anymore. Any received responses to a consultation during purdah should still be welcomed and put forward to the decision-makers but departments should refrain from commenting on them or generate publicity to them.

With the General Election only 6 weeks away, will all Government departments follow the rules?

About the Author

Remmert worked as the Institute’s Policy & Communications Manager and has a BA in Law and an MA in European Policy from the University of Amsterdam. He is well versed in open policy-making and distilling evidence based recommendations into policy actions. Remmert is an expert on the United Nation’s Aarhus Convention for which he has developed a unique risk-assessment tool and is currently involved in a European Union funded project to explore how e-participation can foster young people’s empowerment and active participation in democratic life.

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