The general election pre-election period and local authorities

The general election 2024 guidance issued to the civil service last week provides that for ministers and civil servants, the pre-election period, informally known as ‘purdah’, commenced on 25 May 2024. For local authorities, the pre-election period will commence on the publication of a notice of election, the last day for which is 4 June 2024.

Restrictions during the pre-election period

The business of government continues in the run-up to a general election. However, by parliamentary convention, during the pre-election period, ministers and civil servants are subject to restrictions whereby it is customary for ministers to ‘observe discretion in initiating any new action of a continuing or long-term character’. 

As such, the making of major policy decisions, entering into large or contentious contracts or significant long-term commitments and the appointment of senior public officials, on which a new government may take a different view, are deferred until after the election. These are deferred as long as the postponement is not wasteful of public money or detrimental to the national interest. As set out in the guidance, the rationale for postponing such decisions is to ensure that civil servants do not undertake any activity that might call into question their political impartiality or could give rise to criticism that public resources are being used for party political purposes. But what does this mean for local authorities?

Local authorities and the pre-election period

There is no equivalent of the civil service guidance for local authorities, nor are there restrictions on local authority activities or decision-making during the pre-election period. However, most local authorities have regard for the civil service guidance and in any event they must comply with the general prohibition set out in the Local Government Act 1986, which prevents local authorities from publishing material which is or appears to be designed to affect public support for a political party. 

In 2011, the Department for Communities and Local Government produced The Code of Recommended Practice on Local Authority Publicity (the Code) to which local authorities must have regard. The Local Government Association has also produced updated guidance for local authorities ahead of the general election.

In accordance with the Code, local authorities:

• should pay particular regard to legislation governing publicity during the period of heightened sensitivity before an election or referendum (i.e., during the pre-election period);
• should not publish publicity on controversial issues or report on views or proposals in a way that identifies them with any individual member or political group. Publicity relating to individuals involved directly in the election should not be published unless expressly authorised by or under statute; and
• in general, should not issue publicity which seeks to influence voters (although the publication of material to correct factual inaccuracies in publicity produced by third parties is permitted – provided the correction is objective and neither supports nor opposes any options proposed).

Business as usual?

It is expected that during the pre-election period, local authorities will continue to conduct their business and discharge their functions as normal. This includes the determination of contentious planning or licensing applications and conducting statutory or budget consultations – albeit whilst being particularly mindful of the Code. 

As such, the starting point for local authorities in considering its business and publicity during the pre-election period is to ask themselves: ‘could a reasonable person conclude that the council is spending money to influence the outcome of the election?’ If the answer is no, a local authority should be confident to proceed. Where the answer is yes or maybe, consideration should be given to postponing the particular activity until after the election – bearing in mind any waste of public money which may result from the postponement.

There are a number of steps that a local authority may take to reduce the risk of a challenge that a given decision has been made on political grounds rather than on its merits, such as:

• reviewing its forward plan/key decisions due to be taken before the general election;
• reviewing if any consultations are due to commence before the general election;
• reviewing if any major contracts or agreements are due to be signed before the general election; and
• ensuring that members and officers understand the guidance on what can and cannot be publicised during the pre-election period and to whom they should address queries or seek advice.

Dos and don’ts

During the pre-election period, with due regard to the Code, a local authority can (and should):

• continue to conduct its business and discharge its functions; and
• publish factual information to correct misleading, controversial, racist, sexist or otherwise extreme information.

They should not:

• produce material which seeks to influence voters;
• publish consultation results (other than in compliance with a statutory timeframe) which could be politically sensitive;
• produce publicity on politically controversial matters;
• publish press releases which reference individual electoral candidates or political parties;
• arrange proactive media events which involve electoral candidates;
• publish photographs which include electoral candidates;
• provide council photographs or material to political parties unless it has been verified that such photographs or material will not be used for campaigning purposes;
• continue hosting third-party material or public forums if they are likely to breach the Code; or
• assist with national or local political visits (they must be arranged by the political parties with neither cost nor resource implications for a local authority).

For more information on the general election pre-period, contact Matt Marsh.