16 June 2015

The issue of purdah in relation to the future EU referendum has recently provoked a heated, but rather confused debate.

The government proposal not to apply restrictions on government activity in the campaign period before the EU referendum has been met with vociferous complaints. One side argues that no purdah restrictions would allow the use of government resources and public money in a way that would unfairly benefit the side which the Government sought to support. The Government say they would respect the constraints on campaigning and it is merely a practical solution.

But at the heart of the issue is a conflation of purdah guidance and rules on electoral campaigns. So it is worth going over what purdah consists of, the principles which lie behind it, and what historical precedents might help explain the current situation.

What is purdah?

Purdah, meaning a veil on government, is an old term in UK government history that has gradually evolved into something more formal. Now it is shorthand for the pre-election campaign period, outlining restrictions on how governments may act, how the Civil Service behaves and the use of government resources during that time.

But purdah varies depending on the type of election or referendum. Before a general election, while public services and essential business continue, there are restrictions on new policy or appointments, use of the government machine and statements by ministers across all policy areas. Restrictions are less extensive under a referendum. Under local election purdah, central government business continues as normal, but guidance stipulates that ministers should avoid making statements which could have a bearing on the election.

Purdah’s legal basis, like many aspects of UK government, is a mix of convention, precedent, code of conduct and statutory requirement. It is set out in guidance issued by the Cabinet Office, but this is a more recent phenomenon. Some aspects relate to the Civil Service Code, others are more about abiding by the principle of purdah rather than setting out specific restrictions. Guidance often refers to the need to take ‘particular care’.

Separately, there are some aspects of purdah that relate to statutory restrictions on how campaigns are conducted which are set out in the Political Parties, Elections and Referendums Act of 2000: namely controls on funding and on publicity for electoral campaigns and how the Civil Service needs to be aware of them. But there is a confused boundary between purdah restrictions and statutory electoral restrictions.

Purdah past and present

In the Second Reading of the EU Referendum Bill on 9 June, the Foreign Secretary, Philip Hammond set out the Government’s reasoning for not imposing purdah restrictions before the EU referendum. He said the campaign would adhere to the 2000 Act, and attempted to reassure critics that the Government intended to abide by these rules.

At issue at the moment are two questions: one is about the Civil Service supporting the Government in a referendum campaign; the second concerns whether the Government will be able to use its own resources for publicity purposes and not restricted by the electoral rules.

The Government argue they have proposed this move partly because purdah will cause problems in statements on any aspect of the EU during that period. However, the main argument seems to be that the Government wants the right to use the official machine to support government policy to stay in the EU including in the final weeks before the vote. The logic is that if the Government has decided it is in the interests of the country to vote a particular way, that is government policy and the Civil Service should support the Government in making its case. The same was true in the 2014 Scottish independence referendum guidance which stated that ‘the referendum is on an issue on which the UK Government has a clear policy position’.

The Government’s concern over purdah is based in part on their experience of the Scottish campaign. In the run up to the independence referendum the Civil Service were supporting both sides of the campaign, through their support to the Westminster and Scottish governments respectively. This led to questions over how visible and prominent the Civil Service should be in supporting the Government’s position and whether this should cease during the campaign.

In 2014, the Treasury – and its Permanent Secretary, Sir Nick Macpherson – did play a much more visible role in setting out arguments for a No vote – in position papers and arguments supporting the Government’s position. However, for the Scottish referendum the guidance committed the UK Government to the same restrictions on publication of information during the campaign as the Scottish Government and public authorities were under. Likewise, the AV referendum stated unequivocally that ‘officials should not be asked to provide new arguments for use in the election/ referendum campaign debates’.

Not having purdah might therefore be an attempt to keep the Civil Service from being criticised for an inappropriate role. The one area that all purdah guidance is most clear on is that civil servants are under an obligation ‘not to undertake any activity which could call into question their political impartiality’ and that they were ‘to ensure that public resources are not used for party political purposes’.

However, even if this does prove acceptable, it is the use of government publicity during the campaign that is the crux of the matter. The removal of restrictions could allow the Government to use its funds to publish information and makes its case. Those wanting to keep purdah in place see this as giving the opportunity to the Government to load one side of the campaign unfairly.

Hammond stated that this was a practical issue for the Government: ‘Ministers will want to be able to continue making the case, up to referendum day, without being constrained by fears that, for example, the posting of comments on Twitter accounts could constitute publication.’

But past precedent shows that not having purdah guidance will not make this question go away. The 1975 Referendum on remaining in the then EEC provides salient lessons. Then there was no public purdah guidance. The Civil Service had played a role in the preceding re-negotiation and in preparing for the referendum. This included addressing similar issues of how much grant each side would receive and how the campaigns would be conducted.

However, an expectation of purdah rules was still present. As now, one of the controversial issues in 1975 was the use of public money and government resources in publicity. In his Official History, Sir Stephen Wall recounts how the use of a Government Information Unit was controversial and initially criticised as being an inappropriate role for civil servants. It did things like create a simpler version of the White Paper which was mailed to all voters alongside pamphlets from the Yes and No camps. Some saw this as the pro-EEC camp getting two mailshots and an inappropriate use of public money. It was also presented as the Government providing information for the citizen and, as now, defended as the Government setting out its official policy.

The use of government statements, publicity and the Civil Service to provide additional evidence or arguments could be called into question again this time. The Government have said that this is not about inappropriate use of public funds and government communications, but just about enabling them to make their case and that they would not seek to undermine the debate. But how extensive this will be and by what method they will be ‘making the case’ is not clear at this stage – this is what is worrying those who want to keep some restrictions.

To purdah or not to purdah

Whether or not purdah is in place is important. Deciding whether the Civil Service will be actively involved is a course of action which the Government can choose to pursue, but there are risks involved.

However, more important perhaps is that there is clear agreement from both sides about how the referendum will be conducted. Purdah guidance has in the past been one way to do this. But such guidance has always been just that, guidance only, often full of grey areas and its application usually resolved on a case by case basis. Each referendum has produced a slightly different approach and written documentation, with some continuity of language across them.

Whatever the status of purdah it is clear that some kind of agreement will be necessary. The Scottish referendum guidance was the product of the negotiations over the Act which established the referendum and an agreement between the Scottish and UK government. The same may occur this time between the Government and its own rebels and the Labour opposition. A political solution will have to be found to another thorny and confused constitutional issue.

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