As preparations for the upcoming election to the Scottish Parliament increase, guidance will shortly come into force restricting activity by the Scottish Government and associated bodies which could have political influence.

In this third instalment of our series on the implications of Scottish election law, this article looks at the guidance and to whom it applies, what it requires, and its potential wider impact.

Who

The guidance applies to individuals working in:

  • the Scottish Government;
  • Scottish Government agencies;
  • national devolved public bodies; and
  • public bodies with both devolved and reserved functions.

It applies to these individuals even if they are on secondment elsewhere at the relevant time.

While the guidance only directly applies to a relatively limited group, the restrictions will have an indirect impact on the wider public.

When

As explained previously in this series, the election is due to be held on 7 May 2026. The guidance applies during the six weeks before the election, referred to as the ‘election period’, beginning on Thursday 26 March 2026.

Principles

The guidance is based on three principles, which require that those subject to it:

  • remain politically impartial;
  • ensure that public resources are not used for party-political purposes; and
  • avoid initiating anything that could distract attention from or compete with the campaign.

The first two principles apply under the Civil Service Code and the Scottish Ministerial Code at all times; the third reflects the heightened sensitivity in the run up to an election.

Throughout the election period, however, the Scottish Government will retain its responsibility for governing. The application of these principles is therefore balanced by the fact that the Scottish Ministers should continue to deliver routine or essential business which need not or cannot be deferred and the Scottish Government should be supported to do that by its staff.

Restrictions

The guidance provides detailed advice on the application of the principles in several scenarios:

Policy Decisions - Decisions on matters of policy on which the next Scottish Government may take a different view should be postponed provided it would not be detrimental to Scotland's interest or wasteful of public resources to do so.

Public Bodies - Public bodies should avoid situations where any actions by their staff or board members could reasonably be construed as politically controversial or partisan.

Public Appointments - Ministerial participation in the public appointments process will cease until after the election.

Information Requests - The duties to provide information under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 remain in force, and requests should continue to be responded to within the required time periods. The guidance indicates that if a request relates to a governing party’s manifesto commitments or for a comparison of parties’ policies, however, the requester should be advised to contact the relevant political party’s headquarters directly.

Communications Activity - Everything possible should be done to avoid competition with Parliamentary candidates for the attention of the public. Those subject to the guidance are advised to take special care as ‘information produced with complete impartiality and accepted as objective at other times may attract criticism during the election period’. The guidance does not prohibit the routine publication of information or factual news releases, but notes that any comment on these by the Scottish Ministers should normally be issued through the Minister's political party.

Scottish Parliament - The Scottish Government should not respond to reports by Committees of the Scottish Parliament. The impact of the election on Bills currently being considered by the Scottish Parliament is discussed in more detail here.

UK Government - The UK Government will continue to operate, but its staff are expected to be similarly advised to take extra care in announcing decisions which are likely to have a particular effect in Scotland or which might impact the election campaign. Those subject to the Scottish guidance should maintain dialogue with the UK Government to ensure it is aware of the timing of the election when planning UK Government announcements or events.

Implications

In many cases, the guidance will mean that activity will be deferred until after the election. Where the Scottish Government and its agencies and public bodies are unable to finalise policies or make appointments in advance of 26 March, those still awaiting outcomes may have to wait until after the election.

Civil servants and the Scottish Ministers will, however, continue to carry out their functions unless the pre-election guidance prevents it. Urgent or routine activity can continue, and duties to provide information to the public are not suspended.

As the pre-election period approaches, please do contact your usual Brodies contact for advice if you have any concerns about how the guidance could affect your organisation. Look out also for further instalments in this series.

Contributors

Evan Adair

Solicitor

Lauren Smith

Associate