R (on the application of ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC B12 (Admin)

The facts 

In late 2016, Mr Justice Garnham handed down judgment in a claim for judicial review brought by ClientEarth (“the Claimant”) in which he held that the Secretary of State for Environment, Food and Rural Affairs (“the Defendant”) had failed to comply with Article 23(1) of the Air Quality Directive 2008 and Regulation 26(2) of the Air Quality Standards Regulation 2010. These pieces of legislation collectively prescribe that where levels of pollutants in the air exceed statutory limits, the government is required to ensure that Air Quality Plans (“AQPs”) are established in the shortest possible period of time to address emissions and, thereby, protect the environment and human health. In his decision, he ordered that the Defendant was to publish a draft AQP by 4 p.m. on 24 April 2017 and a final AQP by 31 July 2017 (“the Order”). The April date was ordered at the specific request of the Defendant.

On 12 April 2017, and in the run up to local government elections that were to take place on 4 May 2017, the Cabinet Office published guidance (“the Guidance”) in relation to these elections on when “Purdah” would begin. The Guidance stated that Purdah would start on the following day, 5 May 2017. The Guidance specifically stated that care should be taken “in relation to the announcement of UK Government decisions which could have a bearing on the elections”.

In response to this Guidance, the Defendant applied to the court to vary the terms of the Order so that the publication date for the draft AQP would be amended to 9 May 2017.

On 19 April 2017, the House of Commons voted in favour of holding a general election on 8 June 2017. As a result, the Cabinet Office published further guidance, this time in respect of the general election (“the Election Guidance”), which stated that:

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”.

On the basis that publishing the AQP (in its draft or final form) would constitute a matter of policy decision-making as adumbrated in the Election Guidance , the Defendant applied for a further variation of the Order to change the publication dates so that the draft AQP could be published on 30 June and the final AQP by 15 September.

On a procedural point, although the Defendant had dated its second application as 21 April 2017, it was not in fact served until after close of business on that day, and was therefore not put before the court until Monday 24 April 2017 – the date that Garnham J’s original Order had prescribed. At that point, no draft AQP had been published.

‘Purdah’ and the Defendant’s application

As explained by Garnham J, “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”. The word has been adopted in English to describe the period of time before an election when officials, ministers, public servants and councillors are supposed to refrain from controversial decision-making.

The Defendant argued that the AQP could not be published without affecting the democratic process at the heart of both elections, and, in contrast to the rules of Purdah, publishing the report would divert the public’s attention away from and potentially influence the elections, and ultimately undermine the effectiveness of the AQP.

The Defendant said that there would be a risk that the incoming government would be dealing with a plan that had been published by its predecessor and that this would hamper the development of the plan.

Garnham J, whilst acknowledging that policy making should ideally be avoided before an election, said that any incoming government would face the same issues and that in any event the same legislation, which the Defendant had at that stage not complied with, was still applicable. Moreover, the very nature of the draft AQP was to provide guidance in anticipation of the consultation; it was not, he noted, “set in stone” and ultimately a final decision on its contents would be made later on before publication of the final AQP.

Pursuant to the court’s inherent jurisdiction, a judge has discretion to grant an extension of time for a party to comply with a court order. In exercising this discretion, the court must consider the balance of competing arguments. Ultimately, Garnham J decided that the arguments in support of the Claimant outweighed those of the Defendant. In summary, he found that:

  • The court could find no good reason why it should amend the timetable it had imposed to publish the final AQP;
  • The Defendant was legally obliged to comply with court orders;
  • Additionally, the Defendant had a duty under domestic and EU law to choose a route that reduced nitrogen dioxide and to comply “by the soonest date possible”;
  • Complying with the necessary legislation was crucial in safeguarding public health: the judge cited statistics on this particular element, including that the effects of exposure to nitrogen dioxide was equivalent to 23,500 deaths annually in the UK which in turn equates to 64 deaths each day (a statistic that was in fact cited by the Defendant); and
  • By the Defendant’s own admission, the draft AQP was prepared and ready to be published but it was the Purdah restriction delaying the report’s release.

In respect of the latter argument, Garnham J was careful to take Purdah as a concept into account and indeed to note its significance as a means of safeguarding the electoral process, but he was adamant that Purdah is not “a principle of law”, and that “it is in no sense binding on the courts”. Rather, it is a convention. As a result of this, he said, it could not be used to avoid statutory or court-imposed duties and “enforcement of it is not a legal right vouchsafed to the Government”. He did, in spite of this, acknowledge that Purdah should have some, albeit limited, influence over his decision, and was swayed by the argument that the local authorities would play a very central part in the consultation of the draft AQP and ultimately in reducing nitrogen dioxide emissions.

Garnham J’s conclusion therefore was that he was prepared to extend the deadline for the Defendant to publish the draft AQP to the day after the elected officials took up office following the local election, being 4 p.m. on 9 May 2017. He was not, however, prepared to extend the date of the publication of the draft AQP to cover the general election period, nor was an extension granted for publication of the final AQP. Finally, he ordered that the Defendant pay some of the Claimant’s costs in dealing with the application.

Conclusion 

This case serves as a useful reminder of two important concepts: firstly, the status of conventions in the UK’s un-codified constitution; secondly, the importance the court places on complying with court orders and court-prescribed timetables.

In conclusion, public bodies cannot use Purdah as a means of circumventing obligations imposed on them by statute, EU law or the courts.