Councils mull legal action over government direction to cut newspaper editions

Two London boroughs are considering whether to launch a judicial review challenge to directions by the government requiring them to only publish four issues of their newspapers a year, it has emerged.

The Cabinet at Waltham Forest Council will tonight (5 June) meet to consider its response to a direction issued by former Communities Secretary Sajid Javid on 11 April this year, requiring it to comply with the Local Authority Publicity Code 2011 from 3 September 2018. Waltham Forest currently publishes its newspaper, Waltham Forest News (WFN), on a fortnightly basis.

A report prepared for the Cabinet meeting said that the council’s Director of Governance and Law, Mark Hynes, had instructed Nigel Giffin QC of 11KBW to advise on the lawful basis of the direction being issued.

Following receipt of the counsel’s opinion, Hynes is said to be “of the view that on balance the Secretary of State’s decision can be successfully challenged by way of judicial review”.

The report later reveals that the risk of paying the Secretary of State’s legal costs, should the judicial review be unsuccessful, is mitigated by the fact that Waltham Forest is likely to jointly bring proceedings with Hackney Council, which is subject to a similar direction.

The report meanwhile said: “The Council could take the view that on the strength of the counsel’s opinion the direction is in fact unlawful, and simply raise its invalidity as a defence to any proceedings brought against it by the Secretary of State for non-compliance.

“However it would be preferable for the Council to be seen to be proactive rather than passive and instigate proceedings for judicial review of the direction. Until such time as the legal proceedings were concluded the Council would be entitled to treat the directions as invalid and continue publishing WFN beyond the September 2018 deadline for compliance with the direction.”

Giffin’s opinion and a document summarising the legal position are exempt from publication. However, the report identifies a number of issues were Waltham Forest to decide to comply with the direction.

These include that such a move would: adversely impact upon the ability of local residents to obtain the information that the WFN contains; adversely impact on the council’s ability to communicate effectively and cost-effectively; impact disproportionately on disadvantaged sections of the community who are less likely to access the information by other means such as digital; and force the council to purchase a great deal of newspaper advertising space for the publication of statutory notices.

The Cabinet at Hackney Council is scheduled to make a decision on its response later this month (18 June).