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Notes
1 Although the term ‘purdah’ was once in common usage in this context, it is now widely considered to be inappropriate. See Neil Johnson’s helpful and comprehensive House of Commons Library Research Briefing paper for an explanation for the history and development of the terminology: Neil Johnson, ‘Pre-Election Period of Sensitivity’ (House of Commons Library, 29 May 2024) <https://researchbriefings.files.parliament.uk/documents/SN05262/SN05262.pdf> accessed 28 May 2024. The term ‘purdah’ is only used here when quoting directly from an earlier source; otherwise, the terms ‘pre-election period’ and ‘pre-election sensitivity’ are used.
2 [2017] EWHC (Admin) 1618.
3 For an interesting example of how allegations of inappropriate political interference during the pre-election period have made it into the pages of the law reports, albeit without any detailed analysis of the nature or effect of the convention, see R (Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83, still one of the leading cases on bias and pre-determination. The case concerned the determination of a planning application in the pre-election period.
4 For an interesting contemporary analysis of ClientEarth, see Ruth Harriett Kennedy, ‘The Scope and Effect of Purdah’ [2017] JR 374.
5 The application was supported by a witness statement from Sue Gray, then a Director General in the Cabinet Office, and now Chief of Staff to the Rt Hon Keir Starmer MP as leader of Her Majesty’s Opposition.
6 ClientEarth (n 2) [8].
7 ibid [12].
8 ibid [17].
9 ibid [18].
10 ibid [19].
11 ibid [28]–[29].
12 ibid [30].
13 ibid [33].
14 ibid [34].
15 ibid [35].
16 ibid [38]–[40].
17 ibid [41].
18 ibid [42].
19 ibid [44].
20 ibid [45].
21 ibid [46].
22 ibid [47].
23 ibid [53].
24 ibid [54].
25 ibid [66].
26 ibid [69].
27 ibid [70].
28 See eg Joshua Rozenberg, ‘Moral courage: Chief justice stands up for judicial independence’ (rozenberg.substack.com, 10 June 2024) <https://rozenberg.substack.com/p/moral-courage> accessed 11 June 2024.
29 ibid.
30 See Matthew Gill and Callum Parris, ‘General Election 2024: When Should Public Bodies Speak to Opposition Parties?’ (Institute for Government, 24 May 2024) <https://www.instituteforgovernment.org.uk/explainer/general-election-2024-public-bodies-opposition#footnoteref45_kcsz4z8> accessed 11 June 2024.
31 ClientEarth (n 2) [68].
32 See Josiah Mortimer, ‘Rishi Sunak Could Be in More Trouble as Maths Announcement May Have Broken Election Rules’ (Byline Times, 17 April 2023) <https://bylinetimes.com/2023/04/17/rishi-sunak-could-be-in-more-trouble-as-maths-announcement-may-have-broken-election-rules/> accessed 27 May 2024, cited in Alys Thomas, ‘The pre-election period: Purdah on the dancefloor’ (The Constitution Society, 1 February 2024) <https://consoc.org.uk/purdah-on-the-dancefloor/> accessed 27 May 2024.
33 See Kevin Schofield, ‘Blow for Sajid Javid as Treasury Blocked from Publishing Cost of Labour Policies’ (Politics Home, 5 November 2019) <https://www.politicshome.com/news/article/blow-for-sajid-javid-as-treasury-blocked-from-publishing-cost-of-labour-policies> in Stephen Waddington, ‘Purdah Communication and Resource Rules’ (Influence Online, 6 November 2019) <https://influenceonline.co.uk/2019/11/06/purdah-communication-and-resource-rules/> accessed 27 May 2024 and Thomas (n 32).
34 See Waddington (n 33) and Thomas (n 32).
35 [2021] EWHC 3279.
36 ibid [39].
37 [1986] AC 112.
38 [2021] UKSC 37, [2021] 1 WLR 3931.
39 [2022] EWHC 960 (Admin), [2022] 1 WLR 3748.
40 Compare Sedley LJ in First Secretary of State v Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520 [16]: ‘a policy is not a rule but a guide’.