R Clientearth v Secretary of State for Environment, Food and Rural Affairs

JurisdictionEngland & Wales
JudgeMr Justice Garnham
Judgment Date27 April 2017
Docket NumberCO/1508/2016
CourtQueen's Bench Division (Administrative Court)
Date27 April 2017

[2017] EWHC B12

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Garnham

CO/1508/2016

Between:
The Queen on the application of Clientearth
Claimant
and
Secretary of State for Environment, Food and Rural Affairs
Defendant

Ms N Lieven QC and Mr R Mehta (instructed by ClientEarth) appeared on behalf of the Claimant

Ms P Jackson (instructed by Transport for London In-House Solicitors) appeared on behalf of the Mayor of London.

Mr J Eadie QC and Ms J Kerr Morrison (instructed by Government Legal Department) appeared on behalf of the Defendant

Mr Justice Garnham
1

Introduction

2

On 2 November 2016, I gave judgment in judicial review proceedings brought by ClientEarth against the Secretary of State for the Environment, Food and Rural Affairs. I concluded that the 2015 Air Quality Plan published by the Secretary of State failed to comply with Article 23(1) of the Air Quality Directive 2008 and its domestic manifestation, Regulation 26(2) of the Air Quality Standards Regulations 2010. I found that, on its proper construction, Article 23 of the Directive meant that the Secretary of State was required to seek to achieve compliance of the Directive by the soonest date possible, that she must choose a route to that objective which reduced nitrogen dioxide as quickly as possible and that she must take steps which meant meeting the values prescribed by the Directive were not just possible but likely.

3

On 22 November 2016, after further submissions from the parties, I ordered the Secretary of State to publish a draft modified Air Quality Plan by 4 pm on 24 April 2017 and a final Air Quality Plan by 31 July 2017. The date of 24 April 2017 was the date suggested by the Secretary of State; in other words, in imposing that date for the publication of the draft report, I was adopting the date requested by Defra.

4

On 12 April 2017, the Cabinet Office published guidance in respect of the local government elections which are due to take place on 4 May 2017. That guidance indicated a "period of sensitivity", covering a three week period preceding the elections. That period, commonly called "Purdah", ran from 13 April 2017. The guidance provided that care should be taken "in relation to the announcement of UK Government decisions which could have a bearing on the elections". On 13 April 2017, the Department issued an application for an order varying the terms of my order of 22 November 2016 to postpone the date for publishing the draft plan from 24 April to 9 May 2017. It was said that that order was:

"… sought on account of Purdah restrictions in place as a result of the forthcoming local elections."

5

On 18 April 2017, the Prime Minister announced that the Government would seek approval from the House of Commons for a general election to be held on 8 June 2017. That proposal was approved by the House of Commons the following day. On 20 April 2017 the Cabinet Office published guidance in respect of the general election. That guidance came into effect at midnight on 21 April and applies until the date of the general election on 8 June 2017.

6

That same day, 21 April, the Department prepared a fresh application for a variation of my order of 22 November 2016, which application suggested that the draft AQP should be published by 30 June 2017 and the final AQP would be published by 15 September 2017. It was said that the order was sought:

"… on account of Purdah restrictions in place as a result of the forthcoming local and general elections."

7

Although dated 21 April 2017, that application notice was served after the close of business on that day so that it first came to the attention of the court on the following Monday, 24 April 2017. That, of course, was the date by which my earlier order required the publication of the draft plan.

8

In support of this application, I was provided with a revised witness statement from Ms Sue Gray, a Director General in the Cabinet Office with responsibility for propriety and ethics issues. I have also today heard argument from Mr James Eadie QC on behalf of the Secretary of State, Ms Natalie Lieven QC on behalf of ClientEarth and from Ms Philippa Jackson on behalf of the Mayor of London who was an interested party in the original proceedings. I am grateful for their careful and economic submissions.

9

Mr Eadie submits that in the context of both local and general elections, this application addresses matters of importance to the democratic process and to the effectiveness and efficiency of the process by which an Air Quality Plan will be introduced. He submits that purdah is designed to preserve the necessary space for the proper conduct of the elections and to avoid competition for the attention of the public. He says that holding a consultation in the run-up to an election would constitute a distraction from the election and would undermine the effectiveness of the consultation.

10

Ms Lieven does not resist the grant of an extension until after the local elections. She recognises that local authorities are important consultees and that there would be advantages in not commencing the consultation on the draft AQP before new councillors are in post. But, she says, the same considerations do not apply in respect of the general election. The Government, she observes, is the consultor, not the consultee, in that case and that once the consultation is launched, its task is primarily receptive rather than active during the period of the consultation.

11

Ms Jackson, for the Mayor, is neutral on the application but makes submissions on the timetable that should be put in place if the application is granted to vary that provided for by my order.

12

Four matters fall for consideration. First, I consider the nature of "purdah". Second, I address the question as to the effect of the general principles set out in the guidance in the context of this case. Third, I consider whether on its proper construction this case falls within the exceptional circumstances described in the guidance. And fourth, I address the exercise of my discretion.

13

The nature of Purdah:

14

It is necessary to identify what "Purdah" is and, as importantly, what it is not. "Purdah" is a word of Indian origin. It describes the curtain once used to screen Hindu or Muslim women from the sight of men or strangers. According to the Concise Oxford Dictionary, the word is used figuratively to describe the Indian system of secluding women of rank from public view.

15

The word has been adopted in English to describe the period before an election in which ministers, public servants, councillors and officials are expected to refrain from taking controversial decisions. That policy serves an important function in protecting the electoral process from interference, intended or accidental, by those holding elected public office. Purdah is, in effect, a self-denying ordinance imposed by local or central governments on its officers and members.

16

But "Purdah" is not a principle of law. The guidance from the Cabinet Office, to which I have referred, is directed towards government ministers, other elected officers and officials in central or local government. It is not directed towards the court, nor, consistent with the rule of law, could it be. Purdah does not amend duties imposed on ministers by statute. It does not provide ministers with a defence to proceedings in private or public law. What is set out by the Cabinet Office in the guidance is not law, it is convention. Ordinarily such convention must give way to a duty under statute or an order of the court.

17

Because of the important functions it serves in safeguarding the electoral process, the concept of purdah 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 because a 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.

18

Purdah in itself provides no defence to a failure by the Executive to comply with a court order. It provides no automatic right to an extension of time to comply with an order of the court. It is not a trump card to be deployed at will by one litigant.

19

The effect of the Guidance

20

Paragraph 3 of the Guidance on General Elections says this:

"General Principles:

During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money."

21

Ms Gray says this about "Purdah periods":

"The Purdah periods act to restrict publications by local or central government in respect of matters that relate to impending elections in the periods set by convention preceding them. The intention of these periods is to prevent central and local government appearing to or actually...

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