Recall – right for councillors, right for mayors

Chris Game

The topical, and certainly most agreeable, purpose of this blog is to applaud the appointment of illustrator, cartoonist and writer, Chris Riddell, as the ninth Children’s Laureate. The enviably talented Riddell has been The Observer’s political cartoonist for 20 years and is also a writer and multi-award-winning illustrator of children’s books. But before any of that fame and fortune, he generously provided easily the most eye-catching half-page in an INLOGOV undergraduate degree recruitment brochure. His still spiky cartoon captures those history-changing few days in March 1991 when the Major Government dumped Mrs Thatcher’s community charge/poll tax, slashed existing bills by raising VAT from 15 to 17½%, announced what would become the replacement council tax, and saved the 1992 General Election.

Game pic

For younger, or possibly overseas, readers, the distraught pilot of the community charge flying machine with its flying pig emblem (and looking just a little like the late Michael Foot) is Michael (now Lord) Heseltine, then in his second stretch as Environment Secretary, and the VAT balloon man is the Chancellor of the Exchequer, Norman (now Lord) Lamont.

The accompanying sketch has no connection whatever, except that it’s the only art work – as opposed to artwork – I ever actually commissioned for a recruitment brochure, by Rose (Rosetta) Checkley, a then member of our secretarial staff. It shows the Joseph Chamberlain Clock Tower (‘Old Joe’), the unrefurbished Muirhead Tower, where INLOGOV is today, and in the foreground the JG Smith Building, where we were then.

It would be really good now to segue into a blog on, say, the kinds of things Chris Riddell will be promoting or fighting, like school libraries and public library cuts. But I can’t, so instead it’s a Python-style Now-for-Something- Completely-Different moment.

Leaders of England’s 150 largest councils should be receiving about now a letter from Kevin Davis, Conservative leader of the Royal Borough of Kingston upon Thames council, urging them to follow Kingston’s lead in introducing a system of councillor recall.

It’s hardly a new idea. We hear it almost whenever a councillor is revealed to have ‘forgotten’ to declare a significant pecuniary interest, confided their tasteless personal opinions to Twitter and the world, or simply failed persistently to attend council meetings.

It has slowly come to the boil in Kingston, though, after a Liberal Democrat councillor was dismissed from his party group over allegations of falsely claiming more than £3,600 in council tax benefit. He was eventually convicted, but in the long meantime he continued sitting as a councillor and claiming his £7,500 annual allowance.

Moreover, if re-elected, he could have continued doing so even after his conviction, since the offences carried a maximum tariff of less than a three-month prison sentence. Understandably, many constituents were angry that, under existing rules, there was nothing they could do. In future, though, there may be.

Kingston council will vote next month on innovative proposals to give voters the power to sack their local Councillor.  Several suggested scenarios could trigger a petition calling for a by-election. They include a Councillor’s attendance at meetings over a municipal year falling below 20%, conviction of a crime resulting in any prison sentence, and moving their main residence outside the Royal Borough.

If any of these criteria are met, the council’s monitoring officer would decide whether a petition should be launched on the council website calling for the Councillor’s resignation. Ward electors would have three months to sign the petition, and, if more than a third do so, the Councillor would be expected to resign, triggering a by-election.

The ‘expected to resign’ formula obviously reflects the voluntary nature of the procedure at this stage, even if adopted. But Councillor Davis hopes it will be taken up across local government – hence the letter to council leaders – and eventually embodied in legislation.

My guess, though, is that Ministers, however fondly they may currently feel towards the electorate, are likely to be pretty suspicious. For this ‘let’s trust the voters’ business is just the kind of contagious democratic populism they felt had to be stamped on in the last parliament in relation to MPs’ recall.

Some Members – like, as it happens, Kingston’s two MPs, Zac Goldsmith and James Berry – argued for a genuinely voter-initiated recall process. Instead, we had the Coalition’s half-hearted and unconvincing concession that voters will only get even a chance to remove their MP if s/he is actually jailed or fellow MPs give their permission first.

It was a promising opportunity cynically wasted, so it’s encouraging that the recall principle is being kept in the public eye by this Kingston initiative. However, if we’re looking at local government, while being able to instigate the recall of councillors is undoubtedly important, it’s surely even more vital to have a robust procedure in place to remove, if necessary, those with serious executive power.

At present, that means particularly the metro-mayors that the Cities & Local Government Devolution Bill sets as the accountability price for a combined city regional authority to be trusted with Chancellor George Osborne’s “full suite of devolved powers” over transport, policing, economic development, health and social care.

Obviously, elected executive mayors don’t constitute the only, or even necessarily the best, model of city or county regional leadership and accountability.  It reeks, particularly ironically for a devolution policy, of one-size-fits-all, and it’s almost nationally embarrassing that this and previous governments haven’t cared enough to compare and consider models deployed effectively in other European cities: leaders’ boards, elected and unelected assemblies, standing conferences of key stakeholders.

But sadly, that’s not how UK governments work, of any political colour. They use parliamentary majorities backed by a quarter of the registered electorate to enact dogma-driven rather than evidence-based policy, and this government’s devolution dogma is metro mayors, at least for city regions.

In a governmental system as centralised as Britain’s, therefore, if elected mayors are the government’s condition for ‘far-reaching devolution’, and it was in the party’s election manifesto – as metro-mayors were – you work with and try to make the best of it, which in this case should mean including in the legislation an electoral recall procedure.

That’s what Germany did in the early 1990s. After decades of different local government systems in each of the four Allied occupational zones, and following the country’s reunification, there was throughout the Länder what one commentator described as a “bushfire-like spread of the direct election of mayors”, driven by concerns about performance and democratic deficits.

Bushfires tend not to consult much before they spread, and neither did the Länder governments. They legislated and imposed.  BUT, as a quid pro quo, all the newly mayoral Länder also legislated procedures whereby a sitting mayor could be removed from office through a local referendum – a direct democratic instrument to hold the mayor politically accountable. It was obviously inspired by the recall mechanism used widely in the US, though, with all mayoral municipalities having elected councils, in some Länder the actual referendum is triggered by, say, a two-thirds majority vote of councillors, rather than by a citizen petition.

In the week when Tower Hamlets voters elected a mayor to replace one they themselves played no direct part in removing, it is worth emphasising the importance of both the existence and accessibility of these recall mechanisms in easing German citizens’ early acceptance of what for most was an alien institution.

They had their teething problems – in Brandenburg, for instance, whose voters were so taken by their new democratic power that mayoral recall became for a time a new popular sport: ‘Burgermeisterkegeln’ or playing bowling with the mayors. Generally, though, the prominence given to recall proved both good politics and good government – as surely it would be here.

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.

The PwC report on Tower Hamlets highlights fundamental tensions in local democracy, not always thought through clearly in new mayoral systems

Michael Keith

Competent bureaucrats commonly believe they protect the public interest by delivering transparent decision making in public institutions. This is commendable. Politicians normally believe that they are elected to carry out the wishes of their voters. This is forgivable. But these imperatives rub against each other when politicians try reshaping things in an image they prefer and the bureaucrat wants to preserve an order they recognize. This is difficult.

This tension is not new. Recent events in the east end of London exemplify an old problem. Max Weber’s thoughtful and commonly misunderstood discussion identifies this tension as one of the diagnostic features of bureaucracy. The bureau is in and of itself without politics. In a vocabulary anachronistic in its use and counterintuitive in its usage it might even be argued that Weber suggested bureaucracy was fundamentally anti-political.  The bureaucrat could serve the Chinese despot, the papal machine or the liberal democratic reforming state equally well. But at its best s/he personified a particular kind of stasis, a performative form of repetition without difference.

The bureau reproduces a specific social, moral and political order; dispassionately and without fear or favour or individual exception. This predictable repetition is at the heart of the bureau’s strengths.  At its best it makes visible transparent process. But our conception of the ‘political’ is at heart about change, the juxtaposition of one moral order against another. The politician – whether or not democratically elected – is for Weber a personification of the will to advance a preferred moral order and social settlement. A ‘conservative’ appeals to a particular set of pre-existing values threatened by social change, an alternative politics actively promotes a new moral order against an old one. In cities of flux, characterized by high levels of demographic ‘churn’, migrant urbanisms and processes of regeneration and gentrification the social order is constantly on the move, generating particular challenges for the bureau.

Translated into local government, the most conscientious political actors become engaged in representative democracy for a reason. Councillors normally want to change things in the ward and the local authority they represent. They identify needs, community organisations they believe are doing good things unnoticed, campaigns they want to champion. Such interests sometimes can be advanced through the bureaucracy. But such interests at other times have to be championed against the bureaucracy. Domestic violence only becomes an ‘object’ of local governmental gaze when community organisations campaign for it to be recognized. The consequences of an ageing population with multiple challenges are only recognized by welfare departments after a lot of knocking on doors at city hall. And in multicultural settings both entrenched forms of systemic racial disadvantage and a politics of recognition of cultural difference depend on changing the local state to recognize properly the different needs of cultural groups and evolving and at times banal demographics.

In my own experience the mums’ clubs based in certain locations and the provision for the elderly that once appealed effectively to a past East End tradition of gathering, music and alcohol based conviviality worked accidentally to exclude those who did not gather in pubs, did not socialize around a cup of tea and a cigarette after dropping the children at school. So the bureau only recognizes and changes with pressure. Multicultural realities challenge and change the bureau, belatedly some times, proactively when politcians advance in good faith an understanding of the complexities of new social formations through the architecture of city hall. But such change is never without friction.

Such tensions can be constructive. But in British mayoral systems we are unsure what the proper checks and balances should be. In Tower Hamlets when the will of a people so diverse, so rich and poor, so much a mix of different cultures is personified by one man, the challenges are particularly acute. Price Waterhouse Coopers last week reported to Secretary of State Eric Pickles a situation that led the Secretary of State to suggest that the report “paints a deeply concerning picture of obfuscation, denial, secrecy, the breakdown of democratic scrutiny and accountability, and a culture of cronyism risking the corrupt spending of public funds.”.

The report highlighted that in Tower Hamlets the three most senior bureaucrats are all on temporary contracts.  The boss (head of paid service), principal lawyer (monitoring officer) and head of finance (section 151 officer) are insecure. They depend on political whim for their pay cheque.  The checks and balances for a mayor in one of the most socially polarized parts of Britain are diminished. As PWC suggest and illustrate by one example after another the result in today’s east end is potentially catastrophic. This is why we need to think carefully how checks and balances for elected mayors should work, in the east end and elsewhere.

On the BBC Radio 4 Today programme on 13th November (and in other media) reports on recent events in Tower Hamlets have focused on whether or not there has been criminal behavior reported by PWC. Former Mayor of London Ken Livingstone and former MP for Bethnal Green and Bow George Galloway, both supporting Mayor Lutfur Rahman, curiously mirrored the framing of BBC journalist Zoe Conway in focusing on the issue of criminality and fraud. But this is a chimera. If the report is judged by whether criminality or fraud is eventually proven, if the mayoralty is judged by convictions in court, misses the point. The true message of the PWC report and the lesson for putative mayoral innovations, in Tower Hamlets, in Manchester and elsewhere is that if the proper checks and balances on deliberative democracy are not in place then the result is dysfunctional, opaque and – most importantly – to the detriment of democracy and the disadvantage of local people.

It is why most people will welcome the potential role of three commissioners in east London that might mitigate the questionable deployment of democratically elected but executively absolute power in today’s Tower Hamlets.

This post was originally published by Democratic Audit.

keithProfessor Michael Keith is the Director of COMPAS at the University of Oxford. He also has s a personal chair in the School of Anthropology at the University of Oxford. He is working on projects in the Labour Markets,Citizenship and Belonging, Urban Change and Settlement, and Welfare clusters. He was previously a politician in the East End of London, and has served as the Leader of Tower Hamlets Council.

Pickles’ Tower Hamlets takeover: a sad affair all round

Chris Game

He kept Communities and Local Government Secretary, Eric Pickles, waiting until almost literally the 23rd hour of the 14th day of his two-week deadline. In the end, though, Tower Hamlets’ elected mayor, Lutfur Rahman, having last Friday lost his second, and ill-advised, application for a judicial review, was left with little choice.

With forced smile and through gritted teeth, he was willing to accept and “welcome” the minister’s ‘intervention package’ and his three commissioners, who until March 2017 will take over specified mayoral and council responsibilities. About the only proviso he could muster to cover his mayoral modesty was that the solutions they offer should be “proportionate and workable” – which is about as low as climb-downs go.

The fortnight deadline had been conceded by Pickles when he made his intervention statement to the Commons on November 4, following a critical Best Value report by PricewaterhouseCoopers (PwC) into the borough’s governance arrangements. He could afford to be briefly conciliatory, because he knew Tower Hamlets’ fate had been effectively sealed in the summer, when the mayor’s first application for a judicial review was dismissed in the first line of the judgement as “hopeless”.

By one of life’s pleasing coincidences, that judgement coincided almost precisely with PwC’s regulatory advisory services unit being fined $25 million (or roughly Tower Hamlets’ annual transport budget) and suspended from consulting work for watering down a money laundering report.

I doubt if even Pickles suspects Tower Hamlets of money laundering, but, having also received hefty fines in recent years for failing to safeguard client assets – and “failing to comply with some of the most elementary auditing standards and procedures” – PwC must have seemed the ideal choice for someone who evidently reckons, like the ancient proverb, that an old poacher makes the best gamekeeper.

These PwC cases are, I suggest, more than mere debating points. The fines – and there are several easily searchable others – were for more serious and hugely more self-profiting misconduct than anything its report finds Tower Hamlets guilty of, and the company’s been violating best practice years longer than Mayor Rahman has been in office.

When the PwC report was published a fortnight ago the immediate response of the mayor and council was that it contained “no evidence of criminality or fraud”.

Unrefuted though it was, Rahman’s use of the F-for-Fraud word was (a) at least questionable, (b) a potential hostage to fortune, and (c) somewhat disingenuous. The questionability is that the report does refer (p.28) to “evidence of possible fraudulent payments” of grants to third-sector organisations (emphasis added), but, with the evidence now in the hands of the police, it is not examined further in the report.

The hostage to fortune is that many, probably most, of the fraud accusations levelled at Rahman concern the conduct not of council business but of elections – particularly his own 2014 mayoral re-election, which he won by only 4% from Labour’s John Biggs – and the investigations into these are still very much ongoing. There’s been a detailed judicial scrutiny of ballot papers, and an election fraud trial will take place in the High Court probably in January.

In relation to PwC’s Best Value Inspection report, the fraud reference is also disingenuous, because, as Rahman obviously knows, fraud is not what Best Value is primarily about.

BV was the concept introduced by New Labour in 1999 to supplant the Thatcher/Major policy of Compulsory Competitive Tendering. A council’s duty of BV is “to make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness” (emphases added). The 3Es are quite carefully defined, but “arrangements” aren’t.

The point is, though, that BV is about the existence and satisfactory operation of arrangements and processes. To demonstrate failure to comply, therefore, it isn’t necessary to demonstrate that money has been spent fraudulently, or even in a manner that has failed to achieve an appropriate standard of the 3Es; merely that satisfactory arrangements either haven’t been in place or haven’t operated satisfactorily.

Eric Pickles directed the PwC inspection to focus on the arrangements in four specific areas – those about which there had been most allegations, and essentially those that the commissioners will now take over: payment of grants, transfer of property to third parties, process and practices for entering into contracts, and spending and decisions on publicity.

The PwC report is roughly 200 pages long and by no means a hatchet job. Contracts, for example, were found unproblematic, and publicity received less criticism than Pickles personally would probably have liked.

On the other hand, three of the four property disposals examined were judged BV failures, and grant allocations were found to be all over the place – or rather, the very reverse, disproportionately concentrated on Bangladeshi and Somali groups and areas.

Best Value is a statutory duty and some of PwC’s findings showed serious deficiencies in “arrangements” and processes – much more serious than the mayor at first seemed to acknowledge, as he tried to downplay them as easily remediable “regrettable flaws”.

The really sad thing about this whole affair is the message it sends about local democracy. A Conservative minister, for whom most Tower Hamlets residents would never dream of voting, commissions a report from a bunch of highly-paid professionals, which finds that locally elected politicians have had the temerity to question and even override the advice of more highly paid, unelected officials, probably living outside the borough. And finally, a third set of highly paid unelected officials is sent in to take over. At least some of those voters must surely be wondering why they bothered.

Chris Game - picChris 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.

The 2014 local elections – a preview

Chris Game

Two EU countries this May will hold local elections that coincide with their European parliamentary elections: Greece and ourselves. On Sunday 25 May Greeks vote in the second, ‘run-off’ round of elections to all their 13 regions and 325 municipalities. England, though nearly five times as populous as Greece, also has 325 lower-tier and unitary authorities. We, however, will elect mostly only fractions of fewer than half of our councils, yet still it takes seven lines of a table to summarise the 161 authorities whose voters on Thursday 22 May will probably have both a local and Euro vote. We bemoan our disappointing local turnouts, but we don’t make the system exactly voter-friendly.


Inevitably, the Euro elections will dominate the campaign, and the all-out London borough elections will dominate the local results. In this preview too – though less so in the longer INLOGOV Briefing Paper – all-out elections are accorded priority.

May 2010, when most of this year’s retiring councillors were elected, was Labour’s second worst parliamentary election performance in 80 years. Given a different context, though, its local and particularly its London election performance would have been justifiably celebrated – three boroughs won directly from the Conservatives (Ealing, Enfield and Harrow), seven more from No Overall Control (NOC), and more London seats than the Tories for the first time since 1998.

There’s no mystery about the national-local discrepancy – just two big reasons: the four-year electoral cycle and the General Election-boosted turnout.  The seats up in 2010 were those contested in 2006, when Labour’s estimated 26% of the national vote barely topped the Lib Dems’ 25% and was way adrift of the Conservatives’ 39%. By 2010 that 13% national vote gap had halved, bringing big Labour gains in both votes and councils – thanks partly also to hugely increased turnouts of over 60%, benefiting the large parties, especially Labour, at the expense of minor ones.

Of nearly 1,600 minor party and independent candidates in London, just 23 were elected: 2 Greens, down from 12 in 2006 (Camden, Lewisham); 1 Respect, down from 15 (Tower Hamlets – now 2); no BNP, and no UKIP – though the party has since reached double figures, mainly through Tory defections. This year turnouts will be down again, and minor party representation – including, but not only, that of UKIP – equally certainly up.

London is not a UKIP priority, and its best prospects may be in those boroughs where it already has defectors – Hounslow, Merton and Havering (from the Conservatives), Barking & Dagenham (from Labour). But UKIP influence – countrywide but particularly in London, where electors have potentially three local votes – will also be more subtly felt through vote-splitting, helping Labour to gain control, or possibly the Lib Dems to retain it, where they might not otherwise have done so.

With its long-term opinion poll lead, though, it is again Labour that will be expecting to win councils as well as seats. Back in early January, Sadiq Khan, Shadow Minister for London, announced the party’s ‘suburban mindset’ strategy, and its five Outer London ‘battleground boroughs’ – Conservative-controlled Barnet and Croydon, and the currently hung Harrow, Merton and Redbridge.

The latter are the proverbial low-hanging fruit. In HARROW Labour actually won a majority in 2010, but then, as described in a blog at the time, lost it through splits and defections, handing control to the current Conservative minority administration.  In MERTON it took minority control, strengthened it through Conservative defections to UKIP, and achieved a good result in last summer’s Colliers Green by-election.  In REDBRIDGE the Conservatives and Lib Dems signed a partnership agreement just as their leaders were doing the same at Westminster. In all three boroughs Labour will be aiming for majority control, in Redbridge for the first time ever.

In CROYDON the Conservatives narrowly retained a 4-seat majority through an electoral system rewarding nearly 19% of Lib Dem voters with no councillors at all. Here too a modest swing would give Labour an equally workable majority, and more than justify the party’s decision to employ a full-time agent.

BARNET, though, seems an altogether tougher proposition. Numerous issues have incensed residents – from the ‘One Barnet’ mass privatisation of council services, through the closures of libraries and children’s centres and the scrapping of sheltered housing wardens, to the ever-contentious increased parking charges.  But Labour has never won more seats than the Tories, and to do so would require a nearly 10% swing plus the Lib Dems clinging on to their three very marginal Childs Hill seats.

Labour’s last listed London target is the TOWER HAMLETS mayoralty, held by the controversial Independent and Labour expellee, Luftur Rahman.  Opponents have accused him of everything, from dubiously selling off and granting planning permission for the hotel conversion of the listed Poplar Town Hall to trying to buy his own re-election, but little of the mud really seems to stick and it may, if anything, boost his support. Panorama recently had a go, following which Eric Pickles sent in his inspectors – though not to report back until well after the May elections.

The other four mayoral contests all involve incumbents who were elected in 2002 and are now seeking their fourth consecutive terms: Jules Pipe (Hackney), Steve Bullock (Lewisham) and Robin Wales (Newham), all Labour, plus the Lib Dem Dorothy Thornhill in WATFORD. All four have their policy initiatives and successes, but only Thornhill can claim in addition to have totally recast the politics of her town and council.  Watford in 2002 was an apparently permanently Labour-run town. Yet its voters chose as their mayor a Lib Dem councillor and assistant head teacher, whose party coattails have since transformed the council chamber to the extent that two-thirds of members today are Lib Dems.

Returning to London, with the Lib Dems’ local election performance having collapsed almost as grimly as its national poll ratings, the party’s two majority-controlled London boroughs are bound to be under scrutiny. SUTTON they’ve held since 1990 and, although they lost one councillor to Labour, arithmetically at least they look safe for another term. In KINGSTON UPON THAMES, though, with one councillor resigning to sit as an Independent, plus a lost by-election following their disgraced leader’s imprisonment, their 2010 six-seat majority now hangs on a single seat – and on the hope that UKIP may take votes from the Conservatives in the right places.

The other all-out elections are those caused by boundary reviews, two resulting in slightly enlarged unitary councils and two in smaller district councils. MILTON KEYNES has been run in the recent past by all three major parties, and since 2011 by a minority Conservative administration.  Labour will be aiming to become at least the largest party on the new, enlarged council.  SLOUGH, it is totally safe to say, will continue to be Labour. In THREE RIVERS the Lib Dems will seek to maintain the majority control they’ve held since 1999; and in HART Labour will be wistfully recalling when it last won even a ward – in 1976.

Of the 36 metropolitan boroughs, Labour already controls 29 and so has little need of a target list here. Of the two Conservative councils, TRAFFORD looked the more vulnerable even before the recent shock resignation of Matt Colledge as both council leader and councillor. Having reduced the Tories’ majority to 3 in a recent by-election, Labour will hope to win its own for the first time since 2003. The SOLIHULL Conservatives look securer, partly because their principal challengers, the Lib Dems (now 9), have been defecting to the Greens (now 7), who will be seeking to supplant them as the official opposition.

The West Yorkshire trio of Bradford, Calderdale and Kirklees have all been hung since at least 2000, but this could be about to change.  In BRADFORD Labour’s 2012 hopes of turning its minority control into a majority were thwarted by the coattails effect of George Galloway’s parliamentary by-election victory for Respect. The coattail councillors all resigned last October to become Independents, and Labour should make it this time.

KIRKLEES and CALDERDALE travel in parallel. Five years ago, both boroughs were run by Conservative minorities, which were replaced by Labour-Lib Dem coalitions, which were succeeded in turn by Labour minority administrations. In both boroughs all three main parties have groups numbering at least double figures – a measure of the difficulty any one party has in trying to win an overall majority. Arithmetically Kirklees looks the more attainable for Labour, but the party would probably have to take seats from the Conservatives, Lib Dems and Greens. In Calderdale, in the wards being defended that require swings of less than 10% to change hands, Labour is unlikely to be the chief beneficiary, having finished in second place in 2010 in just three to the Conservatives’ ten.

In STOCKPORT, the Lib Dems now have only minority control of their metropolitan flagship, and are defending 12 of their 29 seats. Labour is the leading opposition, but, having finished second in only two of them in 2010, its gains may be limited. Already the largest party in WALSALL, its chances should be better. If it won the same wards as in 2012, but without this time losing a couple of others to Independents, the party could gain majority control for the first time this century.


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.

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.