With local authorities in England preparing for the local government elections on 3 May, including some with mayoral elections, it is a good time to remind ourselves of some of the legal and practical issues relating to publicity and decision making that may affect local authorities at a time of elections.
Local authorities are prohibited from publishing or arranging the publication of information which appears to be designed to affect support for a political party and from providing financial or other assistance to a person for the publication of information which the local authority itself would be prohibited from publishing.
As well as complying with this prohibition, they must have regard to the Code of Recommended Practice on Local Authority Publicity issued by the secretary of state for communities and local government for local authorities in England.
The Code is relevant to local authority publicity at all times but it identifies the pre-election period as a period of heightened sensitivity and advises particular caution at such a time. The Code says that in the period between notice of an election and the election itself, local authorities should not publish publicity on controversial issues or report proposals in such a way that it identifies them with any individual members or groups of members.
Local authorities should not during that period publish publicity relating to individuals who are involved directly in the election unless this is expressly authorised by or under statute. The Code also says that local authorities may need to suspend hosting material produced by third parties or to close public forums to avoid breaching any legal restrictions
'Publicity' is defined for the purposes of Part II of the Local Government Act 1986 as referring to any communication, in whatever form, addressed to the public at large or to a section of the public. This means that the statutory requirements and the Code could apply to a wide range of publicity.
There may be particular sensitivity associated with decisions taken near to the time of elections. Those authorities with elections will generally organise their meetings and other arrangements in such a way that decision makers are not required to decide on controversial matters during this time. However, local authorities need to be able to go about their usual business and discharge their functions, so some decisions will need to be made.
As well as the risk of breaching the statutory requirements or the Code through publicity about controversial decisions, local authorities should be alert to the risk of decisions being affected by predetermination. In order to take a lawful decision, a local authority’s decision makers need to approach each decision with an open mind. If members express strong opinions on matters – and they may feel particularly inclined to do so when the parties they represent campaign on particular issues prior to an election – and are later required to take decisions relating to those matters, it is important that they do not provide grounds to suggest that they approach the decisions with closed minds. An indication of initial thoughts is acceptable but predetermination would make a local authority’s decision unlawful.
After many cases considered the question of predetermination, the UK Government sought to clarify the position by introducing section 25 of the Localism Act 2011. This takes the position that a decision maker will not be regarded as having predetermined an issue simply by indicating what view he or she might take. This is of some help but if a local authority member actually were to approach a decision with predetermination, that decision could be found to be invalid. Therefore, notwithstanding section 25 of the Localism Act 2011, it will be important for decision-makers to be able to show that they approach each decision with an open mind.
Local authorities will need to be alert to the risk of predetermination or appearance of predetermination when comments are made at periods of sensitivity.
Whilst the immediate priority of local authorities with elections will understandably be on managing the elections themselves, it is important that they give some attention to these wider issues, in order to avoid any challenges to their decisions and actions.
Tiffany Cloynes is partner and head of the regeneration and public services team in England at Geldards LLP