Errol Archer takes a look at what the requirements of the pre-election period mean for governmental officials and the bodies they belong to

Since midnight on Friday 21 April the country has officially been in “purdah”, now more commonly and more informatively referred to as the “pre-election period”.

During this period, the following categories of officials and bodies must take particular care not to act in a way that is or appears to be partisan or might influence voter preferences.

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They are under strict official guidance to not announce, publish, do or say anything that might be seen as being politically partial. The devolved governments of Wales and Scotland have issued similar guidance of their own. The guidance applies to:

  • ministers and civil servants in government;
  • board members and staff of non-departmental public bodies (NDPBs)
  • board members and staff of similar public bodies including arms-length bodies (ALBs)

As regards health, the pre-election guidance applies to:

  • the Department of Health, health secretary, health ministers and junior ministers;
  • civil servants in the DH;
  • board members and staff of the 27 DH sponsored public bodies, including:
  • NHS England
  • NHS Improvement
  • Public Health England
  • Care Quality Commission
  • Medicines Health Products Regulatory Agency

General principles

A number of general principles apply during the pre-election period. These are based on government convention and the Civil Service Code rather than the law itself. They are that:

  • Ministers are to observe discretion in initiating any new action of a continuing or long term character.
  • Any policy decisions, on which an incoming government may wish to take a different view, should be postponed. The same applies to decisions on other issues, for example large commercial contracts.
  • Officials must remain and appear to remain impartial.
  • Public resources must not be used for party political purposes.
  • Government departments and affected public bodies must not compete with the election campaign for public attention; they must not launch any new consultations.

The proviso to the above is that departments should not postpone decisions on policy matters if it would be detrimental to the national interest or wasteful of public money.

And all that said, the government retains its responsibility to govern, as essential business must carry on. It follows that ministers remain in charge of their departments.

Parliament dissolved

Now that parliament has been devolved, there will be near radio silence from Government departments, NDPBs and ALBs. Social media and blogs covering government policies or proposals will not be updated until after the election. This media vacuum will be amply filled with party political campaigning.

NHS Property

Although parliamentary candidates and ministers must not visit or use government property for campaigning, NHS trusts are free to decide whether to permit a candidate or minister to visit. If a visit is allowed, it must not be used by the candidate as an election meeting and must not disrupt services.

Manifestos

Each of the major party’s manifestos will have something to say on health, social care and the NHS: the Conservatives highlighting a proposed £2bn spending on mental healthcare and repeal of the 1983 Mental Health Act; Labour committing to ban hospital parking charges, raise NHS staff salaries and halt hospital closures, and the Liberal Democrats proposing a 1 per cent increase on national insurance payments to secure proper funding for the NHS.

What the politicians say in their manifestos and what they do in government are often two different things. There is little that can be done legally to hold an incoming government to its manifesto commitments. In the 2008 case R (on the application of Wheeler) v Office of the Prime Minister, the court decided against ordering the Blair government to hold a referendum, promised in the Labour party manifesto of 2005, on whether to ratify what became the Lisbon Treaty.

The complex nature of the provision of health and social care services is such that manifesto commitments ought to be seen as no more than tentative indications of intent.

Errol Archer is senior associate solicitor at Ridouts Professional Services Plc

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