Beginning today, I will be adapting and serialising chapters from Brexit Time. During the EU referendum campaign, the ‘purdah’ rules on pre-election political announcements shaped Brexit Time and influenced the timing and flow of political events. Before returning to these Campaign Times, it is worth reflecting briefly on the events of last week and how rules on ‘purdah’ continue to shape Brexit Time.
60 seconds. Four minutes. Accounts differ, but either way, the leaders of the EU27 took little time to adopt the guidelines for the negotiations of the UK’s withdrawal from the EU, at a special European Council meeting.
The guidelines confirm the gulf between the position of the UK and the EU on the sequencing of these negotiations. For the UK – inspired by the hopeless optimism of Brexiteers – everything is possible and up for negotiation from the outset. For the EU, the Article 50 negotiations and the future relationship negotiations are different things with progress on the former being necessary before starting discussions on the latter. All this in the wake of a meeting between Theresa May and Jean-Claude Juncker earlier in the week, widely reported to have increased fears that no deal will be struck given the unrealistic – even ‘delusional’ – expectations of the UK government.
In any event, the negotiations will not start immediately. It remains for the Council to agree and adopt the negotiation directives to be given to the European Commission as the Union’s Brexit negotiator. And with a general election now underway in the UK, the EU will have to wait until 9 June before discussions can commence with whoever occupies the top government posts after the election.
Elections – and referendums – interrupt the normal conduct of political business. Pre-election or ‘purdah’ rules, restrict what governments announce and what decisions they take. Theresa May’s decision to call an early election has triggered these rules. One early consequence was the government’s bid to use the election to delay publication of its air pollution plans, despite ClientEarth’s earlier successful High Court legal challenge: the bid failed. However, the pre-election rules have had a more direct impact on UK-EU relations. Citing pre-election restrictions, on 25 April, the UK government informed other Member States that it reserved its position on a vote on a package of EU spending measures pending the outcome of the election. The reserve, however, has been interpreted as less the necessary consequence of domestic purdah rules and more an attempt to flex political muscle before Brexit negotiations get underway. The move has clearly annoyed the UK’s EU partners. Jean-Claude Juncker’s Head of Cabinet, Martin Selmayr tweeted that: “Now, we’ll have to apply FULL PURDAH RECIPROCITY. Talks with UK, formal or informal, will start only after 8 June’. In other words, the UK’s own rules will be used against it.
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Adapted from Chapter 5: Campaign Times
For those agitating for a referendum on the UK’s relationship with the EU, the 2016 referendum had been a long-time coming. A combination of forces and events had brought the UK to this moment in time. Yet this ‘moment’ was equally a series of more specific campaign times, structured by law – the combined effects of the Political Parties, Elections and Referendums Act 2000 and the European Referendum Act 2015 – and by politics.
An important restriction on the conduct of government during the referendum campaign arose from Section 125 of the 2000 Act which prevented the government and other bodies whose expenses are paid out of public funds from publishing material relevant to the referendum or to issues relevant to the referendum question. This period of ‘purdah’ applied for the four weeks leading up to the date of the referendum. However, when introduced to Parliament, the European Referendum Bill had proposed disapplying section 125. But as a sign of the divisions with the Conservative Party and as an effect of the slim majority obtained by the Conservatives in the 2015 election, an Opposition amendment reinstating the purdah rules attracted the support of a sufficient number of rebel Conservative MPs to amend the Bill.
The date of the referendum had not been resolved by the European Referendum Act. It simply provided for a referendum to be held by 31st December 2017, leaving it up to minister to decide by regulations the precise date for the referendum.
In many ways, it would have made sense to hold the referendum in September 2016. Indeed, there would be a considerable advantage in having the campaign run through August when Parliament would be in recess and normal government business would be quieter making it easier to apply the rules on purdah. A September plebiscite would also give the Prime Minister more time, if necessary, to undertake the reforms and renegotiation that would precede the referendum. But aside from the potential delay that a September referendum might entail, the main reason for avoiding September was the fear that newspaper and television headlines could be dominated by a summer refugee crisis. The consequence was that opinion crystallised around a June referendum. Even if the deal on the UK’s ‘new settlement’ had to wait until the February 2016 European Council, there would be enough time for the referendum campaign.
On 3 March 2016, the European Union Referendum (Date of referendum etc.) Regulations 2016 designated 23 June 2016 as the date of the referendum. That meant that the ten-week ‘referendum period’ – significant in triggering the campaign rules of the 2000 Act – would commence on 15 April 2016.
The Leave campaign had a difficult start to its campaign not least because it was not clear until days before the referendum period began who would be entitled to be the lead campaigner. Before the purdah period kicked in on 27 May 2016, there would also be six weeks of the referendum campaign during which time Government could actively pursue its policy of remaining in the EU, and contest the claims and assertions of Leave campaigners. This also gave the Government a clear deadline by which to publish reports in support of its position. Particularly noteworthy in that regard was an analysis released by the Treasury days before the purdah deadline in which it was predicted that Brexit would create a recession, loss of jobs and a currency devaluation. The report was heavily criticised by Leave campaigners, who challenged the economic assumptions behind the report and indeed, the role of ‘experts’ in public decision-making. At a more institutional level, it was even suggested that a traditionally sceptical Treasury had been overtly politicised towards supporting a Remain vote. For other observers, while the Treasury analysis itself was consistent with the analytical standards of departmental reports, the presentation of the findings on the Treasury website in ways that echoed the political spin placed on the report by the then Chancellor had drawn the civil service more directly into the political arena. The negative reactions to the work of the Treasury would later be criticised as a ‘consequence of departmental cultural hubris’ in a report prepared by Lord Kerslake, the former head of the Civil Service.
The campaigns ended when voters went to the polls on 23 June. At 7.01 on 24 June 2016, Jenny Watson the Chief Counting Officer for the referendum and Chair of the Electoral Commission announced the referendum result. 17,410,742 votes were in favour of Leave; 16,141,241 were in favour of Remain. The UK had voted to leave the EU.
Brexit Time will be published by Cambridge University Press in June.