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Will purdah affect your consultation?

The technical term is ‘pre-election period of sensitivity’ (per House of Commons Library), but unsurprisingly, it hasn’t quite caught on. Using the word purdah is offensive to many, but it persists. The idea is to minimise political decisions or processes that can confer an advantage to one candidate or another. In practice, it means that some public consultations have to be reconsidered.

In recent elections, the Cabinet Office circulated comprehensive guidelines.

From Section J, you will notice that central Government advises the postponement of all non-essential consultations between dissolution of Parliament and the date of an election, but it allows on-going consultations to proceed, though with a ban on publicity, which could then be rectified by either prolonging the consultation period or providing more publicity after the election.

The one thing that is different is that during the last election, there was a High Court case that considered the issue. This was R (ex parte Clientearth) v Sec of State for Environment etc. [2017] EWHC B12(Admin) and it arose because the then Government sought to defer the publication of its Air Quality Plan in order to comply with the principles of purdah as they applied to Local Government elections on 4th May 2017 and the general election scheduled for 8th June 2019. Mr Justice Garnham decided:-

  • That purdah is not a rule of law which overrides the duty on the Government to comply with its statutory duty and the orders of the court.
  • That, properly understood, the general principles set out in the Cabinet Office Guidance applied but did not in themselves establish that the publication of the draft [Air Quality Plan] before the general election would be unacceptable. Considerations such as the need to avoid distracting the public’s attention from the election would only carry ‘modest weight.’
  • That the case fell within the exceptions provided for by the Guidance. This refers to the need to proceed if there is an urgent matter such as something affecting public health

Accordingly, the Court decided to allow a delay until after the local election (as councils were key consultees and newly-elected Councillors should be given the opportunity to consider their response), but he did NOT allow a delay over the general election.

One interpretation of this is that public bodies may have been rather too quick to stop or revise consultations when maybe it was not strictly necessary to do so. The Judge seems to have detected a whiff of self-interest in the Minister (Andrea Leadsom) finding yet another excuse to delay a contentious publication, and where consultations are delayed or cancelled for what appear to be self-serving reasons, organisations might find that this will only serve to heighten the controversy.

Remember – at this time of the year, there are no local elections. Only if national policy issues are likely to impact the decision under consideration, will you be running the risk of contaminating the debate. It is not like a local housing development or a merger of schools where Councillors standing for re-election are competing for the public’s favours at the ballot box.

In the case of the NHS, it is not governed by locally elected Councillors anyway – but, of course, they DO have an influence through Overview & Scrutiny Committees. Where it is wise to defer or delay a consultation is where proposals attract challenge from Members of Parliament and where the election campaign may provoke candidates into a Dutch auction whereby they seek to outbid each other in the vehemence of their opposition. We know of one imminent consultation on the potential closure of a cherished community hospital where deferment is clearly sensible.

In general, if it is likely to become a political football, it is best not to proceed. If your consultation is technical and unlikely to be the subject of political argument, the case for deferment is weak.

Also, it should not be necessary to suspend pre-consultation activity. When, in 2010, the NHS suggested cancelling all focus groups, public engagement practitioners were wrong-footed. Looking back, it seems that may have been about the looming period of austerity that meant that few of the NHS’s contemporary plans became affordable. In the current climate, with money already promised to Police forces, Hospital Trusts and even a Town fund, public bodies already engaging with local people should certainly not stop such activities. Just be aware that nothing is certain. It is perfectly okay to pre-consult in hope, even if the full consultation should wait till the election is over.

Remember that the devolved administrations in Edinburgh and Cardiff are not holding elections. Matters that are wholly within their jurisdiction should probably not be delayed unless the subject-matter is such that political controversy is inevitable. MPs frequently seek to influence decisions by Welsh or Scottish Ministers, though their impact is less than they might expect. In Northern Ireland, it is tempting to think that everything is political, and given the role that the UK Government is playing by default, in lieu of the Stormont Assembly, civil servants in Belfast may be wise to steer a particularly cautious line on these matters.

If you are an Institute member, you are entitled to free advice by telephone, so if you are pondering on the applicability of purdah to your own situation, you may call in for a confidential discussion. As Christmas and the season of goodwill is also not far away, non-members who might like to pick our brains are also welcome to approach us. In both cases, ring Rebecca Wright on 01767 318350, or ask a question on info@consultationinstitute.org

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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