UK election 24
I vow to thee my country…. Are UK manifesto pledges worth the paper they're written on?

In the weeks since the general election was called we have seen feverish campaigning and the political parties have given clues and broad indications on their key policies. One early criticism has been the lack of detail around how their priorities will be achieved. For that we must consider the manifestos.

Great emphasis is placed on the manifestos in UK, but what is their status in law and are they really that important?

Does the new government have to put manifesto pledges into action?

The short answer in constitutional terms is no – government is not legally bound to implement any manifesto commitment. The courts have been clear on this and there are sensible reasons to justify this position.

The observations of Lord Denning from 1981 still ring true today:

"A manifesto issued by a political party - in order to get votes - is not to be taken as gospel… It may contain - and often does contain - promises or proposals that are quite unworkable."

This may particularly be the case of opposition manifestos, where they will not have the full picture on operational matters that may impact how realistic a proposal is. That is quite apart from the fact that at the time they make the promise in their manifesto they are not exercising a public function, not yet being the party of government, and, therefore, public law will not apply to that statement.

But that is not the end of the story. There are other aspects to manifestos worth consideration.

Is enacting a policy justified just because it was in the manifesto?

As in all public law decision making, each policy must be considered on its merits at the relevant time. Therefore, a new government could not implement a proposal in a few years on the basis that it was contained in its manifesto, without thinking about whether it is appropriate at that time. For example, if circumstances have changed in the intervening period, that must be taken into account.

Similarly, if on consideration of a measure post-election, including consultation where that is required, there are strong reasons for not taking it forward then those must be properly weighed up and a reasoned, rational decision taken. It is not permissible to pursue a policy that is irrational (in the public law sense) – or to ignore/discount relevant considerations which weigh against a policy – simply because it was included in a winning party's manifesto.

However, undoubtedly the fact that a proposal was in a manifesto adds significant weight to the justification for taking it forward, as it can be said to lend democratic legitimacy. Seeking to block the implementation of any such proposal, whether through litigation or more informally, would therefore face this additional hurdle.

Could a manifesto pledge amount to an enforceable legitimate expectation in public law?

Legitimate expectation is a doctrine in public law aimed at a situation where a decision-maker represents that they will act in a particular manner and then fails to do so. However, it is often not easy to establish the existence of a legitimate expectation (which requires a clear and unambiguous representation, on which the claimant relied, usually to its detriment). Even if such an expectation is found, it may be overridden in the public interest.

It has long been established that manifesto promises alone will not be enforced as legitimate expectations, and this was recently reiterated: "We do not accept that there is any legal limit to the power… established by the promises contained in the Conservative manifesto. Such promises do not give rise to any legitimate expectation in law and issues in relation to them are managed in the political rather than the legal process."

This fits with the acceptance that, where a decision lies in the macro-political field, the court's level of supervision will be less intrusive. The courts broadly take the view that the "remedy in such a case lies with Parliament or the electorate, not with the courts". It will also often be harder to demonstrate a legitimate expectation where a statement has been made to the public at large, rather than a specific representation to a defined group.

The position may be slightly different if the party repeats its pledge once it has taken power. However, both these points will still apply, and the enforceability of statements made by government is itself a complex and highly fact dependent area.

On the flip side, it seems a manifesto statement that a particular policy is no longer to be pursued can go towards defeating a legitimate expectation, in certain circumstances.

This leaves us with the situation that a manifesto statement cannot be used as a sword against a future government in this way, without more on which to base a legitimate expectation, but it can be used by that government as a shield.

Conclusion

Ultimately manifesto commitments do not have any formal legal status and cannot be enforced by those who may have chosen to vote in a particular way relying on those promises.

However, the court of public opinion often takes a very different approach and there will no doubt be significant political pressure on the parties to see through, or at least take steps to properly consider, their flagship pledges.

Having said that, recent times have seen a string of broken manifesto promises. That is not necessarily a bad thing, as often manifesto pledges are aimed at winning votes rather than the country's best interests. The non-binding nature of manifesto pledges may be a blessing as much as a curse, in that the government will not be forced to enact promises which do not add up after proper scrutiny. Conversely, political and media pressure is likely to provide sufficient motivation for the government to at least give proper consideration to implementing a policy that would be advantageous.

Perhaps the real worth of a manifesto is that it provides a promise to at least consider and investigate the detail of certain proposals, for which the incoming government can be held politically - if not legally - to account.