Ministers have abandoned their proposals to delay local elections in 30 English councils after finding they were likely to lose a legal case on the issue. Announced on Monday, the U-turn was made by the housing minister, Matthew Pennycook, after his boss, the housing secretary, Steve Reed, recused himself from the decision.
The chain of events has raised several questions about government decision-making that officials are refusing to answer.
Why did the government think it was legal to postpone these elections?
Ministers have postponed local elections before. Last year Angela Rayner, as local government secretary, announced that elections for nine councils would be delayed to allow them to carry out a major reorganisation.
That reorganisation, which is aimed at ending two-tier authorities where district councils work alongside county ones, is still under way, which is why Reed said another set of local elections should be postponed this year.
Officials say he was warned before deciding to postpone 30 elections – five of which had already been postponed last year – that it was likely to be challenged in court.
They add, however, that the legal advice did not say specifically that the government was likely to lose such a case until after the Reform UK leader, Nigel Farage, launched his challenge to the decision under the judicial review process.
What changed?
Officials say it was not that the legal advice changed, rather that lawyers became more explicit that the government was likely to lose as the judicial review continued.
Reed’s decision differed from that of his predecessor last year in a few ways.
First, the number of authorities affected by his announcement was much higher and five of them would be delaying elections for a second time.
Second, before taking his decision, he wrote an article for the Times in which he argued that voters would not want to take part in elections for “short-lived zombie councils” that would soon be abolished as part of the reorganisation.
Some critics believe this article would have been used as evidence that Reed had already made up his mind before deciding whether to delay elections, and if so in how many places.
Why did Pennycook make the final decision?
Government sources say that if departmental lawyers recommend reversing a decision because of the threat of it being ruled unlawful, it is normal for the reversal to be decided by a different minister in the same department.
That has happened in the past. When the Conservative government in 2021 overturned a decision to approve a housing development that had been made under Robert Jenrick as secretary of state, the decision was delegated to Eddie Hughes, the rough sleeping and housing minister.
Government insiders say delegating such a sensitive decision is “very rare”. Moreover, advice provided by the government legal service seems to suggest that ministers can overturn their own decisions based on legal advice.
The service’s official guidelines on judicial review say: “Normally a decision maker can reconsider a disputed decision and perhaps withdraw: you should always seek legal advice about reconsideration.”
What did Downing Street know?
Insiders say No 10 was closely involved in last year’s delays when they were announced by Rayner.
However, Downing Street officials said this week the prime minister was not involved in Reed’s second round of postponements or the decision to reverse them.
Can councils organise the elections in time?
Local government officials are exasperated with the fact the government has given them 12 weeks’ notice that they will have to hold elections.
Polling station venue bookings that were cancelled will have to be rebooked and volunteer returning officers will need to be recruited.
Richard Wright, the chair of the District Councils’ Network, said: “The councils affected face an unnecessary race against time to ensure elections proceed smoothly and fairly, with polling stations booked and electoral staff available.”
Most say it should still be possible to put the elections on in time. Westminster officials point out that the authorities would have been planning to hold elections before Reed announced the delays three and a half weeks ago.
Doing so is likely to prove more expensive, which is one reason Reed allocated an additional £63m to affected councils at the same time as the U-turn was announced.
