Pre-election notice period restrictions
The pre-election period begins with the publication of notice of the election. During this period, there are restrictions on the use of public resources by Councils.
Types of restrictions
In general terms, two broad issues arise during the notice of election period:
- Matters that may fall foul of the law or statutory guidance
- A proposed decision or consultation and the consequences of proceeding during the pre-election notice period.
The law and guidance
In broad terms, the applicable legal regime has two limbs. The first is the general prohibition on local authorities publishing material of a party political nature. This is found in section 2 of the Local Government Act 1986.
Factors to be taken into account when considering whether or not this prohibition applies include:
- The content and style of the material
- The time and circumstances of publication
- The likely effect of the material on those to whom it is directed
- Whether the material promotes or opposes a point of view on a question of political controversy which is specifically identifiable as the view of one political party but not another;
- References to a political party or to persons identified with a political party
- Where the material is part of a campaign, the effect which the campaign appears to be designed to achieve.
Also under Section 2, the Council is also forbidden to give financial or other assistance to other bodies to enable them to publish material which the authority itself may not publish. In addition, under Section 5 Local Government Act 1986 (as amended by the Audit Commission Act 1998, Schedule 3 para 12), the Council must keep a separate account of expenditure on publicity.
The second limb of the applicable regime is that local authorities are required to have regard to a Code of Recommended Practice on Local Authority Publicity. See section 4(1) of the 1986 Act.
Publicity is defined very widely in Section 6 Local Government Act 1986 as "any communication, in whatever form, addressed to the public at large or to a section of the public". As well as covering the more obvious forms of publicity such as speeches, leaflets and newspaper articles issued by or on behalf of the Council, it can include sponsorship, events and the posters we put up and even the colour of floral displays. It also covers photos.
The current Code of Recommended Practice on Local Authority Publicity was issued under section 4 on 31 March 2011.
The Council should have regard to the provisions of the Code. It should follow it unless there is good reason not to.
Having explained the extent of its application, the Code then sets out and explains seven principles with which local authority publications should comply.
Publicity by local authorities should:
- 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
The Code then describes each of those in more detail.
The last of these is the requirement to take care during periods of heightened sensitivity, such as the build-up to an election. Publicity produced by the local authority is restricted at all times by the Local Government Act 1986 (as amended) and by the Code of Practice produced as a result of the Act, as well as by the general limits on the powers of a local authority. However, in the run up to an election, additional rules apply. In addition, the general guidelines and restrictions will be given more scrutiny than usual.
The additional rules are set out in paragraphs 33-35 of the Code and state:
33. "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."
34. "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."
35. "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."
The crux of this is at paragraph 35 and bears re-iteration:
35. "In general, local authorities should not issue any publicity which seeks to influence voters…"
It should be noted that there are specific Rules relating to election notices and literature published by agents to promote an election campaign. Advice on this is provided by the Electoral Commission and the Returning Officer. It is an election offence not to comply with those Rules.
Where it is established that factual inaccuracies in media or other publicity (e.g. issued by parties or candidates contesting the election) can be identified then those inaccuracies can be corrected by the Council within the scope of s.2 Local Government Act 1986 and the Code. Only those inaccuracies as may be identified can be corrected. The Council cannot go on to ‘explain’ or otherwise summarise or interpret save as is necessary to correct any factual inaccuracies.
Practical or Operational Issues
In order to act within their powers, local authorities need to ensure that the decisions that they take are within the scope of their powers and are also reasonable. The decision makers must ensure that they approach decisions with an open mind and do not predetermine the issues. The potential for concern about this may be particularly acute if a local authority takes decisions on controversial matters shortly before an election. However, the case of R (on the application of Lewis) v Persimmon Homes Teesside Ltd [2008] showed that this should not prevent the Council from taking the decisions it needs to take if the decisions are taken correctly. The case confirmed that local authorities should not be precluded from the conduct of their normal business during election periods. Whilst Councils must not disregard the potential for unfair electoral advantage or disadvantage by their actions, any presumption of a freeze on decision making is flawed. Business as usual should be the starting point but judgement should be exercised in each case as to potential consequences of ill-timed decisions. There will be many situations where making a decision will be appropriate notwithstanding the imminent election.
The Government has clarified this position further by including in the Localism Act 2011 a provision on predetermination. This provides that if a question of whether a decision maker approached a decision with a closed mind is relevant to the validity of an authority's decision, the decision maker is not to be regarded as taking the decision with a closed mind just because they had previously expressed an opinion on the matter. Whilst this may provide some help, it will still be important for decision makers to be able to show that they approach each decision with an open mind and any evidence to the contrary will make local authority decisions vulnerable to challenge.
Whilst there is no statutory restriction on the Council’s decision-making during the election campaign, taking account of the restrictions in relation to publicity, it will be appreciated that, whilst the Council’s decision-making may well be capable of proceeding, other factors may well limit it, combined with the practicalities of many Members being directly or indirectly involved in the campaign, once notice of the election has been given.
Senior Officers should, therefore, consider very carefully whether it is wise to bring forward any matters for decision during an election campaign that could be politically contentious, not because there is a prohibition or publicity Code issue but because that matter or decision may become an issue in the election. This may then distort the decision-making and create a risk that the decision will be made on party political grounds rather than on its merits and, therefore be challengeable.
Senior Officers should be particularly vigilant and, of course, not permit any issues to be deliberately brought forward during the campaign to create political advantage. Where Senior Officers feel that such a situation is being created, they should seek advice from the CEO & Council’s Monitoring Officer.
Senior officers should also consider decisions that are programmed to take place after an election campaign, and ensure that any consultation documentation being prepared leading up to that, should be set aside. In some circumstances, it may be appropriate to postpone consultations once an election has been called or announced or notice has been given. In general, consultation should not be launched during an election period. Senior officers should not take any steps during an election period that will compete with the candidates for public attention. As these restrictions may be detrimental to a consultation process already in place, in relation to on-going consultation senior officers should consider what steps should be made to make up for those deficiencies.
In many cases, consultations aimed solely at professional groups will not have the same impact as those where a very public and wide-ranging consultation is proposed. Senior officers therefore need to take account of the circumstances of each consultation. Some may need no remedial action, but this is a practical rather than propriety question.
During an election period, officers of the council may continue to receive and analyse responses to consultation exercises with a view to putting proposals to the decision-maker(s), but they should not make any statement or generate publicity relating to this aspect of work during this period.
The following general principles should always be applied in relation to decision-making. Other functions such as consultation and the provision of information under FOIA / EIR will also require these principles to be applied:
- There should be even-handedness in meeting information requests from candidates and from different political parties. Such requests and responses should be handled in accordance with the principles laid down within the Council’s Constitution (Access to Information Procedure Rules, Officer / Member Protocol, etc) and appropriate legislation (Freedom of Information Act 2000, etc) depending upon who the requester is and their status (candidate, councillor, media, etc). Broadly, this should be handled as “business as usual”.
- Particular care should be taken over officer support and the use of public resources including publicity for Council announcements that have (or potentially have) a bearing on matters relating to the relevant elections;
- Similar care should be taken over announcement of decisions made at Officer level. In some cases, it may be better to defer an announcement until after the election but this would need to be carefully balanced against any implication that deferral itself could influence the political outcome. Each case should be considered on its merits and on all cases relating to publicity (see this paragraph and (b) above) the Code of Practice on Publicity should be adhered to.
- Special care must be taken, as outlined in the preceding section, in relation to any publicity campaign to avoid criticism that it is being undertaken for party political purposes. There generally should be a presumption against undertaking any new campaign, which could include any consultation process, in any area that might result in criticism.