With the election fast approaching, there has been considerable discussion in the media about “purdah” and its impact on public bodies during this time. During purdah, ministers, civil servants, non-civil servants and public officers must refrain from making public appointments, taking decisions or making policy announcements which are significant and may be politically contentious. Although local authorities are not bound by the convention of purdah, it is within their power to adopt their own version of the convention leading up to local elections.
For more information on purdah, which normally runs during the period between the announcement of an election and the date the election is held, see Practice note, “Purdah”: the decision-making of public bodies in a pre-election period.
Although local authorities can take decisions during an election campaign, there is a risk that any decision will be construed as being made on party political grounds and be challenged. If local elections are being held at the same time as a general election, local authorities should take care, when publicising the decisions that they have made and be aware of the rules on publicity, in cases where that publicity could influence support for any political party or candidate.
The main purpose of the Local Government Act 1986 (LGA 1986) is to restrict local authority publicity, particularly where it is of a political nature. Under section 2 of the LGA 1986, a local authority should not publish any material that, in whole or in part, appears to be designed to affect public support for a political party. In order to establish whether such publicity is prohibited material, consideration has to be given to its:
- Content and style.
- Time and circumstances of publication.
- Likely effect on those to whom it is directed, in particular whether it refers to a political party (or a person identified with that party) or promotes or opposes a politically controversial point of view that is identified as belonging to one particular party.
- Effect, if it is campaign material.
The Secretary of State is empowered under section 4 of the 1986 Act to issue a Code of Recommended Practice, relating to the content, style, distribution and cost of local authority publicity, to which local authorities shall have regard. Paragraph 43 of the Code, which was revised in 1988, states that:
“Particular care should be taken when publicity is issued immediately prior to an election or by-election affecting the authority’s area to ensure that this could not be perceived as seeking to influence public opinion, or to promote the public image of a particular candidate, or group of candidates. Between the time of publication of a notice of an election and polling day, publicity should not be issued which deals with controversial issues, or which reports views or policies in a way that identifies them with individual members or groups of members.”
Since the Code is not statutory, how it is applied will depend on the individual local authority but during the lead in to a parliamentary election, particularly after the notice of election has been published, it is important that local authority officers act apolitically in their dealings with members and the press/public. Therefore, during an election period local authority officers should not:
- Be seen to promote an individual or political group or party when carrying out their duties or when producing publicity. This would include accepting any invitation to political meetings, photocalls or being included in any campaign publicity, such as leaflets.
- Circulate, or put on display, any election campaign material in Council premises.
- Give any opinions, comments or endorsements as a Council employee that could be seen as promoting an individual or a political party.
- Endorse or promote any government scheme, policy, project or initiative.
It is important for local authorities to avoid their actions being the focus of debate at a media-intensive time, such as in the run up to an election. Although the Code is not statutory, it contains a set of recommendations that local authorities should follow. Therefore, local authority Corporate Directors and Heads of Service should ensure that officers within their service groups are not only aware of their own policies on publicity but also the provisions of the Code, since a failure to follow it could give rise to challenge by way of a complaint to the Local Government Ombudsman, an objection to the local authority’s auditor that the expenditure incurred was unlawful or as part of a wider claim such as a judicial review action.