Councils fail in judicial review challenge to directions restricting frequency of their newssheets

Two London boroughs have failed in a High Court challenge to government directions restricting the frequency with which they can publish their free local newssheets.

The case of London Borough of Hackney & Anor, R (on the application of) v Secretary of State for Housing Communities and Local Government [2019] EWHC related to "Hackney Today" and "Waltham Forest News", which for many years have been published by the respective local authorities approximately once a fortnight.

The newsheets provide information to residents about local public services and contain statutory notices which the local authorities are legally obliged to publish in local newspapers, and which they would otherwise have to pay the local press to publish.

Local authorities use advertisements placed in such newssheets as a source of revenue, helping to defray the expense of publication, which is otherwise met from public funds.

On 11 April 2018, the Secretary of State for Housing, Communities and Local Government made directions under Section 4A of the Local Government Act 1986, prohibiting Hackney and Waltham Forest from publishing their newsletters more frequently than quarterly.

Section 4A confers a power on the Secretary of State to direct one or more specified local authorities in England to comply with one or more specified provisions of a code issued under Section 4 of the 1986 Act that applies to them.

The relevant provision is contained in the passage in paragraph 28 of the Code of Practice on Local Authority Publicity 2011:

"Local authorities should not publish or incur expenditure in commissioning in hardcopy or on any website, newsletters, newssheets or similar communications which seek to emulate commercial newspapers in style or content. Where local authorities do commission or publish newsletters, newssheets or similar communications, they should not issue them more frequently than quarterly, apart from parish councils which should not issue them more frequently than monthly. Such communications should not include material other than information for the public about the business, services and amenities of the council or other local service providers."

Hackney and Waltham Forest challenged the lawfulness of the directions. They raised the following grounds of challenge:

1. Misdirection in law and lack of proportionality;
2. Abuse of power;
3. Wednesbury unreasonable/irrationality and breach of the Tameside duty of inquiry;
4. Breach of the public sector equality duty; and
5. State aid.

Dismissing the challenge, Mrs Justice Andrew said: “The Secretary of State adopted the correct legal approach to the exercise of his discretion. He gave the Councils a proper opportunity to persuade him that what he regarded as a significant and substantial departure from the Code was justified, but having taken their representations into account, he rationally concluded that it was not.

“There was no obligation to seek further information or evidence in order to make his decisions in respect of each borough, and the Secretary of State rationally concluded he did not need to do so. Nor was there any obligation to wait until after a review had been carried out to see how the Code was working, though the Secretary of State expressly considered whether he should do so and decided not to.”

The judge said the Secretary of State’s decision to go ahead “came nowhere near an abuse of power; indeed, it might have been said that he was abrogating his responsibilities, had he failed to act as Parliament intended”.

Mrs Justice Andrews added that the decisions to enforce the Code were taken with sufficiently informed awareness of the potentially detrimental impact on persons with protected characteristics who lived within the affected boroughs, and after consideration of the steps that might go some way towards ameliorating it.

“The decision to enforce the Code neither amounts to a disproportionate interference with Art 10 ECHR or equivalent common law rights of Ms Moore [a resident of Hackney who provided a witness statement] and her fellow residents, nor to the provision of an unlawful State Aid.”

A spokesperson for Waltham Forest Council said: "We did not take the decision to challenge the Government lightly. We produce Waltham Forest News because the government, by law, insist that councils pay to publish statutory notices in a printed newspaper.

"These rules mean local authorities currently pay an estimated £68m council taxpayers’ money to comply with these rules. Waltham Forest News was our way of complying that also helps us communicate with all our residents, particularly those who are hardest to reach or who don’t have regular internet access. These are often the people most in need of help from our services."

The spokesperson added: "We know that our residents appreciate a newspaper that champions both the people and the area giving every household a vital guide to what’s on and what’s great about Waltham Forest. Therefore we are appealing the decision."

Hackney Mayor Philip Glanville said the council was disappointed with the outcome of the judicial review and was considering its legal options.

He said: "I want to assure residents that whatever happens, we will do our best to make sure that they can continue to access the information they have received via a fortnightly Hackney Today since 2002.

"The Government wanted us to stop publishing fortnightly because its guidelines recommend that councils not publish newspapers more than quarterly. At the same time, we are required to publish statutory notices in a newspaper at significant cost.

"We rightly considered these guidelines, but always took the view that in Hackney the balance of evidence regards use of taxpayers’ money and informing our communities favours fortnightly publication."

Mayor Philip Glanville added: "It’s worth noting that Hackney Today has never been found to contravene the guidelines around being ‘objective’, ‘even handed’ or ‘cost effective’. The judge’s decision was based largely upon the view she took about the effect of changes that were made to the legislation in 2014.

"Taking legal action was not something the council did lightly, balancing carefully issues of risk and cost. However, our priority has always been about informing and empowering our residents, as well as making the most of our reduced funding, and we believe the strong case for continuing fortnightly publication of Hackney Today justified this judicial review."