The 2015 elections are now just two months away. Once Parliament has dissolved on 30 March 2015 then the pre-election period (informally known as "purdah") officially starts, when government ministers and civil servants are subject to restrictions on their conduct and role during the election campaign. But what does this mean for local authorities and what action should councils be taking now to ensure that decisions and action taken during the run up to the local elections are not challenged?
Cabinet Office guidance
The pre-election restrictions are a parliamentary convention, outlined in Cabinet Office guidance for civil servants on their role and conduct during election campaigns.
The guidance for the 2015 General Election has not yet been issued but the guidance issued in 2010 sets out the general principles of avoiding active engagement on politically sensitive matters: "During an election campaign … essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long-term character. Decisions on matters of policy on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money."
"Action of a continuing or long-term character" includes activity such as:
- taking or announcing major policy decisions;
- entering into large/contentious procurement contracts or significant long-term commitments; and
- making some senior public appointments and approving Senior Civil Service appointments,
provided that such postponement would not be detrimental to the national interest or wasteful of public money.
Further guidance issued for the 2014 European and local elections makes it clear that civil servants are under an obligation to ensure that public resources are not used for party political purposes and not to undertake any activity which could call into question their political impartiality. This applies to all forms of communication, including websites and social media.
They must also be even-handed in meeting information requests from the different political parties and campaigning groups. Special care should be taken in respect of paid publicity campaigns and to ensure that publicity is not open to the criticism that it is being undertaken for party political purposes.
There is no equivalent guidance for local authorities and no legal restrictions on councils' decision making during the pre-election period; however, most councils take heed of the Cabinet Office advice and operate on the basis that decisions will not be taken nor policies announced that may be significant in their effects and politically contentious.
There is some guidance in DCLG's Code of Recommended Practice on Local Authority Publicity, which includes a section on "Care during periods of heightened sensitivity":
- Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections and referendums. It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.
- During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.
- In general, local authorities should not issue any publicity which seeks to influence voters. … It is acceptable to publish material relating to the subject matter of a referendum, for example to correct any factual inaccuracies which have appeared in publicity produced by third parties, so long as this is even-handed and objective and does not support or oppose any of the options which are the subject of the vote.
Decision making during "purdah"
The most significant case on decisions during the purdah period is R (Lewis) v Persimmon Homes Teesside Ltd  EWCA Civ 746. In this case the Court of Appeal overturned the High Court's quashing of Redcar & Cleveland BC's grant of planning permission for a controversial mixed residential and leisure development on land owned by the local authority. The judge at first instance had held that a fair minded and informed observer would conclude there was real possibility of bias and predetermination, particularly as the planning committee meeting was held during the run up to a local authority election.
The Court of Appeal held, allowing the developers' appeal, that little evidence had been produced that members of the committee were any more politically motivated than would normally be expected from elected policy makers, and the notion that a planning decision was suspect because all members of a single political group had voted for it was an unwarranted interference with the democratic process.
Lord Justice Pill said that "The members of the Committee had long experience of [the project], its merits, demerits and problems. … I am far from persuaded that the imminence of the local elections at the time of decision, on the evidence, demonstrated that those who voted in favour of this planning application had minds closed to the planning merits of the proposal. In my judgment … a decision to quash the planning permission is not justified. It would be damaging to the democratic process if the decisions of elected councillors are to be quashed on the basis of the additional and unusual circumstances thought to have been decisive in this case."
The case is also useful in emphasising the policy role of local councillors and how this does not normally bar them from decision making.
Since that decision, s.25 of the Localism Act 2011 has been enacted, which clarifies that it is proper for councillors to play an active part in local discussions and that the expression of a view on a particular local issue, or campaigning for election on a particular platform, should not be treated as evidence of a closed mind on the particular issue, which should prevent them from participating in council business relating to such an issue.
This in effect is saying that a predisposition to a particular view is acceptable, which is the position the courts had reached some years previous with the Persimmon Homes decision and the Island Farm Development case (R (Island Farm Development Ltd) v Bridgend CBC  EWHC Admin 2189).
Business as usual?
Although local authorities are not under any legal restrictions on activity in the pre-election period, they should act with caution to reduce the risk of a challenge that a decision has been made on party political grounds rather than on its merits.
There are some actions that you can take now to avoid such claims:
- review all up and coming Key Decisions and re-schedule any particularly sensitive ones to a date outside the pre-election period (bearing in mind the Persimmon Homes case);
- make sure that no major consultations start or finish during this period;
- check that major procurement contracts are signed by the end of March;
- ensure that your members and officers are aware of the guidance on what they can and can't publicise.
We will be covering these issues in more detail at our Governance training events which are being held in March at various dates in Birmingham, London, Bristol and Sheffield. These events are free and booking is via our website.
In addition, if you have any queries on any issues raised in this Alert, please do not hesitate to contact a member of Bevan Brittan's Local Government team.