The pre-election period: Purdah on the dancefloor 

By: Alys Thomas

Introduction 

The latest date the next UK General Election can be held is 28 January 2025. That must be called before 17 December 2024, when the Prime Minister must ask the Monarch to dissolve Parliament. The ‘pre-election period’ (previously known as ‘purdah’) normally begins once the election is called, or shortly after, and places restrictions on government activity during the campaign. This blog explains the restrictions that apply to ministers and civil servants during this period. 

Pre-election period of sensitivity 

As per the House of Commons Library, the pre-election period of sensitivity occurs in the weeks leading up to an election or referendum. It is a time when governments, ministers and civil servants will exercise caution in making announcements or decisions that might influence the election campaign. The exact period depends on the type of election. In 2019 the pre-election period lasted from Wednesday 6 November to 12 December 2019. The period of sensitivity preceding local elections is not fixed to any particular date, but the general convention is that special care should be taken in the three weeks preceding the elections. In the English Local Elections in 2022 this was from 14 April until election day on 5 May. The pre-election period for the UK is governed by conventions. Backbench and opposition MPs are not constrained by the pre-election period of sensitivity. However, all MPs, elected politicians and candidates will need to ensure they abide by campaign finance and election law during an election. 

Ministers 

UK government ministers remain in office and in charge of their departments during the pre-election period of sensitivity. It is reasonable for departments to continue to provide support for any necessary governmental functions, and ministers will continue to receive any policy advice or factual briefing necessary to resolve issues that cannot be deferred until after the election. However, within this, ministers must observe discretion in announcing new initiatives in their capacity as a minister. For example, in 2023 Rishi Sunak was reported to the Cabinet Secretary after he was accused of breaking the pre-election period rules preventing big policy announcements ahead of elections. Here the Liberal Democrats argued that a maths policy announcement could have violated the Government’s own election guidance.  A Government spokesperson responded that “we are aware of the rules that guide local election purdah and abide by them”.  

The general principle is outlined in the Ministerial Code of Conduct which suggests that while ministers may campaign during elections, public money and departmental resources should not be used for party political purposes. There is some evidence that this convention is falling by the wayside. For example, during 2019 General Election campaign Facebook adverts were targeted at voters in marginal constituencies. The adverts promoted £25 million being targeted in these locations. They were subsequently removed by the Ministry of Housing, Communities and Local Government (MHCLG).  

Civil servants  

The UK Government issues guidance for civil servants to follow during pre-election periods. This is based on the Civil Service Code, which outlines the values and standards of behaviour that civil servants are expected to follow. 

The Cabinet Office Guidance for civil servants issued before the 2019 General Election (“the guidance”) highlights the implications for the work of departments and civil servants. These arise from the distinctive character of government business during an election campaign, and from the need to maintain, and be seen to maintain, the impartiality of the Civil Service. The Civil Service must also endeavour to avoid any criticism of an inappropriate use of official resources, which might be seen as an attempt to influence the course of the election.  

The guidance specifies that at a general election, “the government of the day is expected to defend its policies to the electorate.” By convention, the governing party is entitled to check with departments that statements made on its behalf are factually correct and consistent with government policy. Civil servants should provide consistent, factual information on request to candidates of all parties, as well as to organisations and members of the public and should in all instances avoid becoming involved or appearing to become involved, in a partisan way, in election issues. 

As mentioned above, ministers will continue to oversee their departments and while departments will continue to provide support for any necessary governmental functions, officials should not be asked to devise new arguments or cost policies for use in the election campaign. Nor should departments undertake costings or analysis of opposition policies during the election period. 

Special Advisers 

Special advisers are also issued with a code of conduct. Guidance for different elections follows similar principles. Care should be taken in relation to controversial announcements, publicity campaigns, consultations and visits that could be seen to have an influence on an election. Special advisers who wish to take part in the general election campaign or help in a party headquarters or research unit during such a campaign must first resign their appointments. Special advisers who resign and leave the department will no longer have preferential access to papers and officials. Any request for advice from a former special adviser will be treated in the same way as requests from other members of the public. 

Devolved Elections 

The Scottish Government and the Welsh Government are responsible for issuing guidance for devolved elections, which were last held in 2021. The last Northern Ireland elections were held in 2022 and Guidance was issued by the Northern Ireland Executive. This is broadly similar to that of the UK Government. The UK Government and the devolved governments all issue guidance for Local Government Elections. 

How effective are pre-election period rules? 

Most elections throw up some accusations of a breach of the pre-election period rules, but this is especially prevalent in local elections. However, during the 2017 Election, the Public and Commercial Services Union (PCS) accused HMRC of breaching the pre-elections rules after contracts for its plan to move 60,000 staff to regional hubs were signed in the pre-election period. 

Similarly, in 2019 Boris Johnson was accused of making an announcement on funding while visiting the Brecon and Radnor Constituency where a by-election was being held. A Government spokesperson said: 

The government announcement covered Scotland, Wales and Northern Ireland. This included more funding available for all growth deals, following an announcement of England-wide funding. The announcement included references to existing deals, such as the one for Mid Wales, and was not specific to any constituency, including where the by-election is taking place. 

Such examples support arguments that these “rules” are in fact guidance, and can be open to interpretation. A legal ruling by Judge Garnham in 2017 provided further clarification of the now lesser used term ‘Purdah” when it described “a self-denying ordinance imposed by local or central governments on its officers and members.” The main point the judge made was that “purdah” is notcontained within the rule of law. He concluded: 

[P]urdah will be carefully taken into account by the court in reaching decisions which affect central and local government in the period immediately before elections. However, it is in no sense binding on the courts. It is conceivable that breach of the rules of Purdah might found a claim in the courts against the executive. It is possible to imagine proceedings based on misconduct in public office or on breaches of legitimate expectation. That is becausea breach of the rules of purdah may, conceivably, constitute a legal wrong, but enforcement of it is not a legal right vouchsafed to the Government. 

Conclusion 

Judge Garnham concluded that purdah is not law but rather a convention, and as such, it does not amend duties imposed on ministers by statute or provide ministers with a defence to proceedings in private or public law. In order for business to be conducted during a pre-election period:- 

  • It must be “business as usual”; and/or 
  • It must be uncontroversial; and/or 
  • There must be “good reasons” or “exceptional circumstances”, such as urgency. 

The ruling provides a useful statement of the legal position but as the pre-election period rules are a convention or ”self-denying ordinance”, there have to be questions about their robustness. The few examples cited above show allegations of rules being broken and then assertations from Government sources that the rules have been complied with. A key question which must be asked is whether a convention is a strong enough check and balance in today’s political landscape. 

Alys Thomas.

Alys Thomas has researched and written about constitutional issues for many years, particularly on the devolution settlement in Wales. From 2003 to 2019 she worked for National Assembly for Wales’ Research Service in the Constitution Team. She is a contributing writer for the Constitution Society. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.