Councils could be stifled from commenting on government policy, lawyers warn

Placing the Local Authority Publicity Code into legislation could lead to councils being banned from campaigning on behalf of their residents on key issues, according to legal advice obtained by the Local Government Association.

The Government is proposing to make the code, which is currently a guidance document, into legislation through clause 38 of the Local Audit and Accountability Bill.

The Bill is waiting for its second reading in the House of Commons, having passed through the House of Lords before the summer recess.

According to the LGA’s legal advice, from Sharpe Pritchard, clause 38 will have the effect of altering the way in which the code can be enforced by the government and (for the first time) by third parties.

The clause introduces two new sections into the Local Government Act 1986:

• Section 4A: enables the Secretary of State for Communities and Local Government to give directions to one or more specified local authorities, requiring them to comply with the code.
• Section 4B: enables the Secretary of State to make an order that applies to all local authorities, or local authorities of a specified description, imposing a duty on them to comply with the code.

Sharpe Pritchard said: “Both would enable the Secretary to single out specific provisions of the code which must be complied with, and both would also allow the Secretary of State to say that the whole code must be complied with. Also, in both cases, the duty to comply can be imposed on a local authority even if there is no suggestion that the authority has breached the code.”

The law firm gave a number of examples of the consequences of the Government’s proposals.

On the possible stifling of authorities’ powers to comment on central government policy, it cited HS2 as a project of “immense significance to the authorities affected by it (some who are strongly in favour and some who are strongly against)”.

Sharpe Pritchard said: “It is conceivable that the Secretary of State could use his direction making powers to require specifically named councils who oppose the scheme in principle to refrain from making any adverse comment about the scheme in their publicity, on the basis that it is [per paragraph 15 of the current code of practice] ‘likely to be perceived by readers as…...being a commentary on contentious areas of public policy'."

The law firm continued: “How can that possibly sit with the fact that as a matter of principle those same authorities can challenge the process behind HS2 in the courts – as they have done – and petition Parliament against the hybrid bill for HS2 – which they surely will do.

“Why should the authorities concerned not be able to make their opposition known or provide a commentary on the scheme by means of publicity, and provide information to their local residents about why the authorities are opposed to it, and explaining to their local residents how they can oppose it too? Even though primary legislation specifically provides that a council can petition against the HS2 Bill (see section 239 of the Local Government Act 1972), there is a real possibility that using the direction making powers in particular, the government could seek to prevent the authority from communicating its views to its own residents.”

Sharpe Pritchard highlighted a lack of clarity in the code. It said the way that the code is currently drafted sat easily with the duty only to have regard to it, “because the code is loosely drafted”.

As an example it pointed to the lack of definition in the code of what constituted a 'newsletter' or 'newssheet', terms used in paragraph 28 of the code, and argued that this might lead to different views between an authority and the Secretary of State.

The law firm also pointed out that the order making power [in Section 4B], in particular, was very broadly drafted. “It could enable the Secretary of State to make an Order requiring all authorities to comply with every paragraph of the code, even where there is no evidence of any failure to comply with or have regard to the code.”

It said: “The argument will no doubt be that the government have no intention of making such a wide ranging order. Intentions are one thing, but experience has shown that where there is a wide-ranging power, it is often used to the full extent eventually.

“The power to make a direction should surely only be directed at authorities who have breached or failed to have regard to the code, and similarly the power to make an order should not be able to be used in respect of authorities who have a completely clean record of compliance.”

Sharpe Pritchard said this was a particular concern, given the relative ease by which the code itself could be altered (by negative resolution).

“If an order is in place requiring all authorities to comply with the whole code, then presumably it will continue to require them to comply with the code as amended, without the need for there to be any alteration to the order. This could result in authorities having to comply with controversial changes to the code without the affirmative procedure being used.”

Sir Merrick Cockell, LGA Chairman, said: “Councils have a legitimate, local, democratic mandate. They have a proud history of campaigning on behalf of their residents who rightly look to them to unite communities and stand up for their best interests. That might often be inconvenient for central government, but a community being able to fight for or against unpopular or controversial proposals affecting their area is a key part of democracy.

“This independent legal advice also confirms our fears that a government could hand power to one individual in Whitehall to restrict councils from campaigning on important issues such as HS2 or hospital closures if they so wish.”

Sir Merrick added: “To simply make it easier for government to ignore the views of communities is unacceptable, sets a dangerous precedent and will mean local areas and residents will suffer as a result.

“The Government needs to see sense and withdraw these ill-thought out proposals. Councils must retain the ability to communicate its views to its residents and not be stifled from commenting on central government policy.”