Election 'purdah' is no excuse for non-publication of revised air quality plan

The post below was first published on our UK Real Estate Development blog

Author: Julie Vaughan, Senior Associate, Environment, London

Yesterday, a spokesman for the Prime Minister announced that the Government won't be pursuing an appeal to the High Court's decision of 27 April 2017, in which the Government failed in its attempt to delay publication for consultation of its revised air quality plan until after the 8 June 'snap' general election. Yesterday's announcement confirmed that the Government will meet the new 9 May deadline. The saga is an interesting example of what may post-Brexit become the only available route to hold the Government legally to account for compliance with national level obligations, once the threat of legal proceedings before the European Court of Justice is removed.

The basis for the proposed delay was that launch of the consultation is an activity falling within restrictions imposed by the so-called 'purdah' period. The aim of purdah is to guard against new measures being announced which might give the ruling party an advantage in an election. Purdah usually commences once Parliament is dissolved and runs until the final results are in, and is governed by conventions based largely on the Civil Service Code. There is an exemption which allows measures necessary for safeguarding public health. In this particular case, the pre-election purdah period for the 8 June election started at midnight on Friday 21 April, which constitutional experts have pointed out was unusually early.

Publication of the revised air quality plans had been ordered by the High Court as the outcome of two successful cases brought by environmental public interest lawyers, ClientEarth (see here and here for our previous blogs discussing these cases). In those rulings the court confirmed that the UK is in breach of EU law with regard to the quantity of nitrogen dioxide in the air within several urban areas of the UK including London. In order to bring the UK into compliance as soon as possible, the court ordered the Government in November 2016 to produce a plan of action. It did so, but was almost immediately taken back to court by ClientEarth on the plan's lack of effectiveness, whereupon the court agreed that the plan was wholly insufficient. It ordered a revised draft to be issued for consultation on 24 April 2017. No sign of the revised plan had materialised by the due date, and at the last minute the Government claimed that Cabinet Office officials had concluded that purdah would force it to delay publication of the draft until June, after the General Election. They proposed to push back publication of the final plan from 31 July until 15 September 2017.

Sceptism abounded as to whether the claim of purdah was really to hide the Government's failure to come up with suitable new policies. Intriguingly, the Government is reported to have claimed that the draft plan exists and will contain measures that are potentially politically controversial – demonstrating how far air quality has moved from a political no man's land to a key front page issue. However, on 27 April the Court didn't care much for the politics: “These steps are necessary in order to safeguard public health,” said Mr Justice Garnham. And Counsel for the Government could not promise that delaying the draft plan past the General Election would not have an impact on the implementation of the measures in the plan. Hence, the Judge ruled that it is essential to publish the draft plans immediately to safeguard public health and that the purdah rules do not act as a trump card, not being binding on the Court. In fact, the exceptional circumstances posed by the threat to public health from poor air quality meant that the purdah restriction could be waived. The Court ordered the Government to produce the plan on 9 May 2017, after the local elections. No extension was given to the requirement to issue the final plan by 31 July 2017.

The decision has been welcomed amongst others by the Lord Mayor, Sadiq Khan, who is actively pursuing a policy of traffic emissions reduction within the London area and has referred to the attempt to use election purdah rules as a "smokescreen".

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