The pre-election period (“purdah”) and scrutiny

Posted on November 15, 2019 by Ed Hammond.

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In the past few days we have received a number of queries from councils asking about how they manage the “pre-election period” in the context of their ongoing scrutiny meetings. This period (commonly called “purdah”, although we don’t use that word because of its connotations) is also sometimes described as the “period of heightened sensitivity”. During an election campaign local authorities have to ensure that “publicity” produced by the council is not seen as supporting a particular political party or candidate.

The relevant law can be found in s2 of the Local Government Act 1986, as amended. A good starting point to understand this topic is the recent LGA-published guide on this subject – https://www.local.gov.uk/our-support/pre-election-period. It’s important to bear in mind that the way we talk about and interpret restrictions around the pre-election period is different to the way it is talked about in central Government. So do exercise caution if using material prepared for a civil service audience on this subject.

The meaning of “publicity” is broad. Councils have to legally publicise formal committee meetings (although the nature of that publicity is limited) and placing reports and other material in the public domain appears to mean that this information is technically caught by the law on this subject.

Conduct at meetings is perhaps a slightly different matter. Scrutiny meetings have a political character – councillors will be looking at matters of political contention. But the nature of debate means that the risk is arguably lower. Some councils, for example, are cancelling ward forums and assemblies (where councillors might make decisions on the spending of certain local budgets) but keeping scrutiny meetings at the Town Hall in the calendar – because the risk is lower and because councillors at scrutiny are not actually making decisions.

Ongoing task and finish work, which usually doesn’t happen in public, can usually continue. Scrutiny work which involves members “fronting” engagement with members of the public – public meetings, and so on – may have to be postponed and rethought (although see below).

For formal committees, this does put us into something of a grey area. It is clear that council business cannot grind to a halt during this period. But should councillors sitting on committees censor themselves, or their debate, for fear of “breaching” the rules?

What should be done?

There is no obvious, catch-all solution. Shifting around agendas to put less contentious items on the agenda seems a disingenuous approach – it is a constraint on scrutiny’s ability to look at the things that really matter.

As ever, the solution is likely to be one based on pragmatism and the careful management of debate and discussion on the day. In a standard scrutiny committee meeting, councillors can and should enter into debate in the usual way; the chair might wish to constrain the most obvious party political language, as would be the case in a standard committee meeting anyway.

Where a matter is of such contention that a sizeable public attendance is expected, and where the meeting is a formal one that has been in the calendar for some time, councillors will need to carefully think about how to proceed, subject to the advice of the Monitoring Officer. It may be that more focus can be placed on listening to the audience and witnesses – with councillors asking questions but agreeing to defer active debate. Difficult, though, to stick to this undertaking in what may be a febrile political atmosphere.

As a matter of principle we would suggest that it’s safe and reasonable to continue with most planned scrutiny activity – taking the advice of the Monitoring Officer on particularly high profile public-facing scrutiny activity in which councillors are expected to be involved. And of course the Monitoring Officer’s advice and directions on these matters more generally should always be followed in the first instance. 

(Thanks to colleagues at the LGA and Lawyers in Local Government who fed into this post; obviously any inaccuracies or errors, should they be present, are ours!)

About the Author: Ed Hammond

Ed leads CfPS's work on devolution, transformation and on support to councils and other public bodies on governance and accountability.