It’s been 30 years coming, but Clause 38 is still really bad news

Chris Game

Sometimes you hear “All things”, but the ancient proverb and the modern Guinness advert agree that it’s “Good things come to those who wait”. Unfortunately, bad things do as well, and for local government Clause 38 of the Local Audit and Accountability Bill is a bad thing that’s been waiting to happen for 30 years and now finally has.

Full badness details will follow, but first, please excuse some personalised scene-setting. The LAA Bill is through the Lords and should get its Commons Second Reading later this month. Its main and originally entire purpose, embodied in Clauses 1 to 37, is to complete the Audit Commission’s abolition and introduce from 2017 a new regime for local authorities and other public bodies to appoint their own auditors. Yes, it is controversial, but a controversy best pursued by more knowledgeable others.

The sole concern here is Clause 38, one of two added by Communities Secretary Eric Pickles and the DCLG long after MPs’ scrutiny of the draft Bill had been completed. It comprises Ministers’ intention to turn the Code of Recommended Practice on Local Authority Publicity from guidelines with which councils are currently recommended to comply, into a statutory document with which they must comply.

There are several wrongs here, quite apart from Ministers’ extraordinary Humpty Dumpty attempt – “when I use a word, it means just what I choose it to mean” – to label it an exercise in ‘localism’, because it seeks to protect the interests of local newspaper publishers against those of elected local authorities. The story starts, though, in the adventitiously appropriate year of 1984.

Then, as now, Ministers were in a lather because a handful of mainly London councils were doing things they didn’t like: some admittedly dubious, but most provocatively ‘political propaganda on the rates’ – when the phrase, unlike when their successors use it today, at least made literal sense. The then Pickles, Patrick Jenkin, played to his party conference audience by announcing what would become the Widdicombe Committee of Inquiry into the Conduct of Local Authority Business, designed to do a hatchet job on those pesky Labour boroughs.

It didn’t work out quite like that – partly, I like to think (as one of the researchers), because of the Committee’s commissioning and use of an extensive programme of independent research, and partly through refusing in its main report to deliver the censorious denunciations of local government practice for which Ministers were apparently looking.

That main, research-based Widdicombe Report, though, was preceded by a quick-and-dirty, research-free interim report on local authority publicity. The Committee members didn’t want to play, and used the opportunity to rehearse their views that local authorities were more than a sum of their services, and had a duty to inform the public both of their own functions and on local government matters generally.

They delivered a divided report, but the majority verdict calling for a prohibition of publicity designed to support a political party was enough for Ministers to produce a statutory political publicity ban, based not on content, which was Widdicombe’s concern, but intent – indeed, possible intent: any material which appeared designed to affect, “or can reasonably be regarded as likely to affect”, support for a political party, cause or campaign.  Remember those conjectural words; there’s more coming up.

The only constraint on the Government in the 1983-87 Parliament were the Lords, and here they removed “likely to affect”, and a good deal else besides, and refused to agree to any code of practice being more than advisory. But the reprieve was short-lived and by 1988 there was a new Act with an even more restrictive definition of legitimate publicity, embedded in a Code of Recommended Practice to which authorities were required to “have regard”.

There have been various interim revisions of the Code, but none that have changed its fundamental character: a set of recommended principles and ultimately voluntary practices, written and scrutinised as such, with none of the forensic drafting rigour that would have been brought to a document intended for legal enforcement. But change “have regard” into “must comply” and you change everything, and that’s what the Government is doing in Clause 38.

I’ll look first at the Publicity Code itself, then at the proposed means of enforcement. The Code’s most recent revision in 2011 was driven jointly by the Newspaper Society – arguing (without much support from hard evidence) that council publications, rather than the internet and broadband, were the crucial threats to local newspapers’ sales and advertising revenues – and a receptive Eric Pickles, two of whose favourite hate taunts are ‘propaganda on the rates’ in the form of ‘town hall Pravdas’ or council newssheets.

Up front in the Code are seven key principles: that publicity by local authorities should be lawful, cost effective, objective, even-handed, and appropriate, should have regard to equality and diversity, and be issued with care during periods of heightened sensitivity.

Even here there are examples of the real slackness and imprecision with which the Code is, and will remain, littered. What do ‘have regard’ and ‘care’ mean? How tall does sensitivity have to grow? And another of those conjectural phrases we saw earlier: objectivity is infringed by “anything likely to be perceived by readers as constituting a political statement, or being a commentary on contentious areas of public policy”. Whether or not you think it reasonable for a political body to make a political statement or an observation on a contentious policy, what kind of yardstick is the likely perception of all, or most, or some, or a vexatious handful, of your readers?

To repeat: in a voluntary code, already overseen by numerous laws, auditors, and the Advertising Standards Authority, these vaguenesses are merely irritating and a potential get-out. In a statutory code, they can cost potentially serious money.

Probably the code’s most contentious provisions are that, where councils do publish “newsletters, newssheets or similar communications”, they should not be issued more frequently than quarterly, or “seek to emulate commercial newspapers in style or content”.

The majority of council newspapers are now quarterly, although even a monthly publication – an appropriate and cost effective frequency, one might argue, for keeping residents fully informed of service developments and changes, consultations, forthcoming council business, councillors’ surgeries, traffic orders and planning notices – could hardly be said to be emulating the style of commercial newspapers, whatever that might be guessed to mean.

What we have, then, is one more example of Ministers’ typical modus operandi in their dealings with local government. They see something they don’t like being done by a few London boroughs on their proverbial doorstep – in this case, distributing a weekly newspaper (Tower Hamlets) or fortnightly magazine (Newham). Then, instead of letting residents decide for themselves whether they approve of how their money’s being spent, they outlaw it with ill-prepared legislation applying to every principal and parish council in England – in the name of localism.

Which brings us to the enforcement debate. Clause 38 allows the Secretary of State to direct one, some or all authorities to comply with part or all of the Code, whether there are grounds for believing they are currently breaking it or not.

How, though, do you judge either compliance or non-compliance with a code as casually drafted as this one? Even in the apparently straightforward case of council publications, there’s no definition even of ‘newsletter’ or ‘newssheet’ or when either metamorphoses into a newspaper, let alone of what emulating commercial newspapers in style and content entails.

“Contentious issues” – like HS2, a third runway at Heathrow, large housing developments, cuts to police and fire services, hospital closures, welfare reforms – are, well, even more contentious.

At present, if an authority feels it or its residents would be severely adversely affected by a government policy, it can “have regard” to the principles of the Code, but still judge the matter sufficiently important for it to explain its opposition in a way that will certainly be perceived by at least some readers “as constituting a political statement, or being a commentary on contentious areas of public policy” – because that’s what it’s intended to be.

LGA Chairman, Sir Merrick Cockell, picks HS2, and specifically the cross-party 51M alliance of 19 local authorities opposed to it, as a topical issue that highlights the almost laughable irrationality of the Government’s proposals. The authorities have already challenged the Government’s policy in the High Court, may carry on the fight in the Supreme Court, and will surely petition Parliament for amendments to any eventual legislation. Yet, if they attempt publicly to explain their case and how they’re spending residents’ and taxpayers’ money, they would in future risk being individually and/or collectively prevented, on the grounds of infringing the Code.

It seems that, after nearly 30 years’ waiting, Pickles and his colleagues are about to achieve what their Thatcherite predecessors never quite managed: the power to gag any council’s questioning of any Government policy. It would have been bad legislation then, but in today’s hugely different political climate, it looks, if anything, even worse.

Chris Game - pic

Chris Game is a Visiting Lecturer at INLOGOV interested in the politics of local government; local elections, electoral reform and other electoral behaviour; party politics; political leadership and management; member-officer relations; central-local relations; use of consumer and opinion research in local government; the modernisation agenda and the implementation of executive local government.

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