The law and local authority publicity

Alex AikenDirector of Communications & StrategyWestminster Council

This presentation

• The legal basis for publicity

• The New Code of Conduct

• Publicity in the run up to elections

• Conclusions and developments

SUMMARY• General duty to promote the work of the council

and democracy• Critical test is the use of public resources to

support party politics• Additional caution during election not to

inadvertently support or damage candidates (incurring costs and bias publicity)

• Judgement on publicity based on purpose, subject, style, spokesman and cost effectiveness.

True or False?

• IDEA: “It is inappropriate to publicise individual councillors. The exception is to give out basic information such as contact details, their responsibilities and any proposals or recommendations that are relevant to their position.”

• Stevenage Borough Council: Local authorities face more legal restrictions than private bodies when it comes to external publicity. Most importantly councils cannot publish material which appears to be designed to affect public support for a political party.

• CLG: “For a community to be a healthy democracy requires local understanding. Effective communication is vital to that understanding”

• LGIU: “There is no need to cease all proactive publicity during elections”

Westminster City Council is spending £20,000 of Council Taxpayers money to promote the Conservatives in the run up to the West End by-election and next year’s City Council elections, according to Labour Councillors.

Breach of the code?

Inquiry urged into £20,000 spent by Westminster on posters promoting the Conservatives

The legal basis for publicity

S142 Local Government Act 1972 “provision of information relating to matters affecting local government”• S142 Key elements:-(1) Provision or publication (within their area) of

“information” concerning the services available within the area of authority provided either by the authority, or by other local authorities, or by government departments……….”

(2) Publication within their area of information relating to the functions of the authority

(3) Lectures, discussions, pictures, film, exhibitions etc

The legal basis for local government publicity

Sec 145 of the Local Government Act 1972: “Power to encourage visitors……….”S145(I) “A local authority may (either alone or jointly with any other person or body) encourage persons, by advertisement or otherwise, to visit their area for recreation, for health purposes, or to hold conferences, trade fairs and exhibitions in their area”.

Act later amended to cover “electronic communications”

Also 1973 Act (“services available”) and 1984 Act (health and disease communication).

Local Government Act 2000,recognising the role of Executive, powers to promote “well being” and the role of the authority as a community leader

Local Democracy, Economic Development and Construction Act 2009: duty to secure greater involvement of people in the decision-making processes of local public authorities

Additional legal powers to publicise

• Press releases • Newsletters • The website • Posters and leaflets • Badges and t-shirts • Advertising • Exhibitions • Conferences • Consultation

What is publicity?

Case law

Meek v Lothian Regional Council:“Information on matters relating to local

government” is not restricted to purely factual information but could include

explanation and justification”

BUT

R v ILEA ex parte Westminster City Council:persuasion of the public to a particular point of

view is not a proper orlawful purpose.

(Also R v GLC ex parte Westminster City Council)

And “the Edinburgh case” Improving Services, creating jobs “Slogans alone are not a

justification…”

The 1986 Act and the Code of Conduct

Section 2 of the Local Government Act 1986:“Prohibition of Party Political Publicity”

Section 4 of the same Act: “Code of Recommended Practice as regards publicity”“…..and local authorities shall have regard to the provisions of any such code in coming to any decision on publicity”

Section 2

(1) A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party.

(2) In determining whether material falls within the prohibition regard shall be had to the content and style of the material, the time and other circumstances of publication and the likely effect on those to whom it is directed and, in particular, to the following matters -(a) whether the material refers to a political party or to persons identified with a political party or promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another (b) where the material is part of a campaign, the effect which the campaign appears to be designed to achieve

(3) A local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section from publishing themselves.

AREAS TO PUBLICISEService informationBuilding vision and directionWorking in partnershipListening and involvingDelivery outcomesAdvocacy for communitiesempowering local communities

CHECKWhat is the purposeDoes it inform ?Does it promote well being?Is it balanced and accurate?Is it an attempt to persuade on policy?

What we can publicise

Publicity in the run up to elections

The TestCould a reasonable person conclude that

you were spending public money to influence the

outcomes of the election?

Section 75, Representation of the People Act

No expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account -

(a) of holding public meetings or organising any public display; or

(b) of issuing advertisements, circulars or publications; or

(c) or otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate.

Elections and the Code of Conduct - Principles

• be lawful • be cost-effective • be objective • be even-handed • be appropriate • have regard to equality and diversity • be issued with care during periods of heightened sensitivity

• Lawfulness (pars 7-9)• Part 3 of the Communications Act 2003 prohibits political advertising on

television or radio. Local authorities must ensure that their publicity does not breach these restrictions.

• Section 125 of the Political Parties, Elections and Referendums Act 2000 places a specific restriction on the publication by a local authority of material relating to a referendum under Part 7 of that Act, during the period of 28 days immediately before the referendum is held.

• Regulation 5 of the Local Authorities (Conduct of Referendums) (England)

Regulations 2007 (S.I. 2007/2089) prohibits local authorities from publishing material in the 28 days immediately before a referendum which expresses support for, or opposition to a particular answer to a referendum question relating to the constitutional arrangements of the authority.

Care during periods of heightened sensitivity (pars 33-37) Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections and referendums – see paragraphs 7 to 9 of this code. 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. However this general principle is subject to any statutory provision which authorises expenditure being incurred on the publication of material designed to influence the public as to whether to support or oppose a question put at a referendum. 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.

Notice of election published Friday 25th March

Deadline for appointment Thursday 7th AprilOf agents

First issue of postal ballot Monday 18th April packs

Polling Day Thursday 5th May

Verification Friday 6th May (am)

Count Friday 6th May (from 4pm)

Election Timetable

LGcomms Approach

(a) No publicity should be given to matters which are politically controversial(b) The general presumption should be that no references will be made to

individual politicians in press releases;(c) Great caution should be exercised before undertaking any significant

media exercise unless it can be demonstrated that this was included in the forward diary before the election was called;

(d) No photographs including candidates at the election should be issued(e) Before any request for Council photographs and other materials are

acceded to enquiries should be made as to the use to which they are to be put and an appropriate restriction on use imposed if the request is acceded to;

(f) The position of a Civic Mayor as the figure-head of the authority is different and we can be more relaxed about issuing material relating to him provided that it is apolitical

• Use of public meeting rooms: ALLOW

• Blogs and e-comms: SUSPEND

• Outstanding campaign material: PLAN

• Member enquiries: ‘TRUST BUT VERIFY’

• National political visits: NO RESOURCES

• Schools: LOCAL RULES

• Carrying out consultations: JUDGE

Other Election issues

• Understanding the code of conduct and disseminating this across the council

• Planning events and publicity around the likely dates of the election

• Providing briefing on your issues to candidates and relevant national spokesmen

• Election night• Planning activity in the post election period

What you should be doing

ILLEGAL“In R v ILEA Ex parte Westminster City Council the London Education Authorityused its powers to inform the public for the purpose of convincing the public of its political point of view. The authority based its decisions on considerations, which were not relevant to their decision making power and have acted unreasonably.

LEGAL Persuading people to recycle, obey rules of the road, becomes adoptive parents,train for qualifications, invest in the area.

CONGESTION CHARGING CAMPAIGN “Westminster’s campaign against congestion charging has made the GLA think again, put the arguments against the charge clearly and nearly stopped the scheme” Purpose: Understand the impact of the charge on the city Subject: Within the remit of the 2000 well being powersStyle: Started with citywide consultation – identified business and resident concernsSpokesman: Officers (technical case) and politicians once agreed policy Cost Effectiveness: Clear business case for campaign given burden on people.

The Persuaders?

aaiken@westminster.gov.uk0207 641 3226