Avoid pre-election panic – How to navigate “purdah” as a local authority

What is the pre-election period?

The pre-election period of heightened sensitivity (also known simply as the “pre-election period” and previously known as “purdah”) is the period which occurs in the immediate run up to local elections, general elections, and referendums. During this period, certain restrictions apply to various public bodies and individuals, including MPs, civil servants, and local authorities.

For general elections, the pre-election period begins when Parliament is dissolved and political campaigning starts. For the upcoming general election on 4 July, the pre-election period will begin on Friday 31 May.

Why are there rules around the pre-election period?

The rules on pre-election sensitivity originate from convention rather than legislation. Initially “purdah” related to the convention of the Chancellor of the Exchequer not discussing the budget prior to its publication to avoid possible negative effects on the market.

The pre-election period has a similar purpose; the restrictions are intended to allow elections to be carried out without undue interference and avoid political parties using their power to gain an unfair advantage. During the pre-election period, central government, civil servants and NDPBs will continue to take decisions on a “business as usual” basis. However, decisions will not be taken or policies announced if they are, or may be, significant in their effects and politically contentious.

Does the pre-election period for a general election also apply to local authorities?

Local authorities, even though they are not carrying out elections themselves, still observe certain conventions during the pre-election period for a general election.

However, unlike for ministers and civil servants, there is no clear guidance to advise local authorities on how they may or should act during the pre-election period. The most recent guidance for central government, May 2024 elections: guidance on conduct for civil servants, explicitly does not apply to local authorities.

Due to this lack of clarity, local authorities often align themselves with the guidance for central government. Many local authorities, in recognition of their own specific public circumstances, will have their own guidance for the pre-election period which should be considered.

As a starting point, the assumption is that “business as usual” can continue for a local authority during the pre-election period. However, caution should be exercised when making certain decisions which would either be politically contentious or have significant effects, especially in the following areas:

• use of facilities;
• use of resources;
• starting consultations;
• development of new policies; and
• holding meetings or other events which feature elected officials.

In order to avoid issues, local authorities can choose to delay decision making until after the pre-election period has concluded.

Publication of political material

Alongside the restrictions outlined above, local authorities have a duty under section 2 of the Local Government Act 1986 (the “Act”) to “not publish, or arrange for the publication of, any material which, in whole or in part, appears to be designed to affect public support for a political party.” Using the power in section 4 of the Act, the government published the Code of Recommended Practice on Local Authority Publicity (the “Code”), which local authorities must have regard to when coming to any decision on publicity.

The restriction in section 2 of the Act applies at all times, not just during the pre-election period. However, the Code indicates that during the pre-election period local authorities should pay “particular regard” to their legal duties in the following ways:

• consider suspending the hosting of material by third parties;
• consider closing public forums;
• do not publish material on controversial issues or report views or proposals in a way which identifies them with any individual members or groups of members;
• do not publish material relating to individuals involved directly in the election (unless this is clearly allowed by statute); and
• do not issue any publicity which seeks to influence voters (subject to legislation).

The Local Government Association has also published a short guide to publicity during the pre-election period to assist local authorities comply with their duties under the Act and the Code.

Can decisions made during the pre-election period be challenged?

If decisions made during the pre-election period are done so on the basis of party politics rather than their individual merits, they may be open to challenge.

In the Court of Appeal case of R. (on the application of Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746, the claimant argued that a grant of planning permission was invalid as it was made for an electoral advantage. The court rejected the claim, finding that any decision made during the pre-election period does not become unlawful merely because of its timing. All elected officials have a political pre-disposition, and without further evidence, nothing suggests this would cause a “closing of minds” any more than it would outside of the pre-election period.

Since section 25 of the Localism Act 2011 came into force, enshrining the principle that a decision maker who has previously indicated their view on a matter relevant to that decision will not be taken as having a closed mind, it may be less likely that a challenge on the same basis would be raised. However, in cases where there is further evidence of a closing of minds, there is still the potential for challenge.

Comment

While the guidance is less clear than that for central government, local authorities must be mindful of their actions during the pre-election period to a general election. Caution should be exercised and decisions which could be considered politically sensitive should be delayed, especially if they are likely to result in a challenge.

At all times local authorities should consider their duties in relation to publication of material, but this is especially important during the pre-election period.

Finally, remember that circumstances for each local authority may differ; always follow any internal guidance regarding the pre-election period.

Steve Gummer is a Partner and Beth Edwards is a Trainee Solicitor at Sharpe Pritchard LLP.

This video is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk

[1] [2008] EWCA Civ 746