Twenty Third Report Contents

Appendix 2: “Purdah” and secondary legislation: correspondence with the Cabinet Office

Letter from Lord Trefgarne, Chairman of the Secondary Legislation Scrutiny Committee, to Caroline Noakes, MP, Minister for Government Resilience and Efficiency at the Cabinet Office

In our recent scrutiny of secondary legislation, we have heard from a number of Departments that there have been delays in progressing policy decisions leading up to the laying of statutory instruments before Parliament, and that a contributory factor in these delays has been the periods of “purdah” before elections.

Examples considered by the Committee at its latest meeting include:

We agreed that we would find it helpful to see the latest guidance to the civil service on “purdah” and its implications for the conduct of Departmental business. I would be grateful if your office could provide this to us.

Looking ahead to the scrutiny of secondary legislation that will be laid before Parliament over the coming months, we also agreed that it would be helpful to know how many periods of “purdah” are expected to constrain the work of Departments during the remainder of the current Session (to 2019). This information will give us a better idea of the likely flow of secondary legislation in the next year or so. We would expect that Departments themselves would factor these constraints into their forward planning of statutory instruments.

Thank you for agreeing to give evidence to the Committee on 27 February, in the context of our concern about Government consultation practice. We look forward to talking to you then, but we would nonetheless welcome it if you could reply to this letter by the middle of January.

21 December 2017

Letter from Mr Oliver Dowden CBE MP, Minister for Implementation at the Cabinet Office, to Lord Trefgarne

Thank you for your letter of the 21st December 2017. My officials have been looking into the issues you have raised which has taken longer than I and they would have wished, and for that I apologise.

The conduct guidance issued to civil servants in pre-election periods (“purdah” guidance) places certain restrictions on their activity during election or referendum campaigns. The principles of the guidance are longstanding and are in effect an extension of the principles that already apply to civil servants as set out in the Civil Service Code. The guidance is clear that the Government still retains its responsibility to govern; its purpose is not to unnecessarily delay essential Government business, but it ensures that civil servants avoid any activity that could call their political impartiality into question or give rise to criticism that public resources are being used for party political purposes. We were not aware of the two cases that you refer to in your letter and we will bear in mind these sorts of issues when preparing pre-election guidance ahead of the next General Election.

Where there is any doubt about what constitutes ‘essential’ business and whether such activity should proceed during pre-election periods, consideration is given by the relevant Government department on a case by case basis, taking account of public interest considerations and with advice, from the Propriety and Ethics team in the Cabinet Office. These judgements consider a number of factors such as whether postponing policy decisions would be detrimental to the national interest or wasteful of public money.

Ministers are expected to show discretion in initiating any new action that is long term in nature. Policy decisions that a new government might want the opportunity to take a different view from the present Government, including decisions associated with legislation, are generally postponed until after the election.

The most recent pre-election guidance was published at the beginning of the purdah period ahead of the 2017 General Election. A copy of that guidance is enclosed and can be found at the following link:

There will be a purdah period in place for civil servants ahead of the local government elections scheduled to take place in May 2018. These elections are different from a UK general election and as such the restrictions that apply are not as extensive. The Government will remain in office whatever the outcome of the elections and Ministers and civil servants will continue to carry out their functions in the usual way, including the making of statutory instruments (SIs), unless progressing those SIs would have a particular local impact that could have a bearing in a local election campaign. Again, judgements on where SIs, or the policy issues associated with them may need to be postponed, are taken on a case by case basis. However, I would expect the vast majority of SIs to proceed as normal during the local government election campaign. I have also attached a copy of the guidance that was issued to civil servants ahead of last year’s local elections to give you a sense of the principles that apply:

I look forward to discussing these issues with you in due course.

12 March 2018

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