Local Authority Publicity - The Publicity Code and the Localism Bill

1. Local Authority Publicity -The Publicity Code and the Localism Bill Peter Keith-Lucas 11th March 2011

2. Session One –The Publicity Code Peter Keith-Lucas 11th March 2011

3. The Code of Recommended Practice on Local Authority Publicity Section 2, Local Government Act 1986 • Prohibition on publicity which appears to be designed to affect public support for a political party, having regard particularly to - • references to political parties or persons identified with political parties • The purpose of any campaign of which the publicity is a part • Prohibition on funding publicity by others that the authority could not itself publish

4. The Code of Recommended Practice • Section 4, Local Government Act 1986 • The Secretary of State may issue a code of recommended practice as regards, content, style, distribution and cost of local authority publicity • Local authorities shall have regard to any such code in coming to any decision on publicity

5. The Code of Recommended Practice 26. Local authorities should not incur any expenditure in retaining the services of lobbyists for the purpose of the publication of any material designed to influence public officials, Members of Parliament, political parties or the Government to take a particular view on any issue. 27. Local authorities should not incur expenditure on providing stands or displays at conferences of political parties for the purpose of publicity designed to influence members of political parties to take a particular view on any issue.

6. The Code of Recommended Practice 28. Local authorities should not publish or incur expenditure in commissioning in hard copy 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.

7. The Code of Recommended Practice Conclusions – • Shorter and omits some oddities in the old Code • Weaker guidance on Election “Purdah” • Unjustified assertions devalue the Code • As statutory guidance, you can depart from it if you have good reason to do so – • Local authority newsletters reach 95% of households • Local authority newsletters save advertising costs • Public information needs to be up-to-date • Hence more frequent newsletters.

8. Session Two –The Localism BillWhere does it engage Publicity? Peter Keith-Lucas 11th March 2011

9. The Localism Bill • 207 Clauses • 24 Schedules • 142 powers for the Secretary of State to make subordinate Regulations • Royal Assent – November 2011 • Implementation – from April 2012

10. General Power of Competence (Cl. 1-9) • “A local authority has power to do anything that individuals generally may do” Powers of an individual

11. General Power of Competence (Cl. 1-9) • “A local authority has power to do anything that individuals generally may do” Powers of an Authority

12. General Power of Competence (Cl. 1-9) • “A local authority has power to do anything that individuals generally may do” Powers of an individual Powers of an Authority

13. General Power of Competence (Cl. 1-9) • “A local authority has power to do anything that individuals generally may do” Powers of an individual New Powers of an Authority Powers of an Authority

14. So, what does it mean? Significantly extends local authority powers to “Trade” – • “Trading” even where no economic, social or environmental well-being benefit • So provides a power to trade in “back office” goods and services • Trading is not limited to “public bodies” under S. 1 LA (G&S)A 1970, so enables trading with e.g. • Academy Schools • GPCCs • Private companies • General public • But new “trading” must be through a trading company

15. But what can natural persons do, which local authorities will now be able to do? - • Take stands at party conferences • Publish newspapers monthly • Take out commercial insurance • Sue for defamation • Act unreasonably • Vote • Marry

16. Committees, Leaders, Mayors and Super Mayors • Sub-85,000 authorities can keep the Committee system • “Leader” authorities may revert to the Committee system, eventually • But “Leader” Districts still have to move to Strong Leader in May 2011 • Mandatory Mayoral referenda in 12 cities • Leaders will become Shadow Mayors pending referendum • Mayors may request Council to make them Super Mayors • “the senior officer of the authority” • ? Hire and Fire powers • Secretary of State may transfer other bodies’ functions to the Mayor

17. Predetermination • Concern that Councillors are restricted in campaigning on local issues • “A member or co-opted member is not to be taken to have had, or to have appeared to have had, a closed mind when making a decision just because – • The decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took or would or might take, in relation to a matter, and • The matter was relevant to the decision”

18. Standards of Councillor Conduct -Headlines • Continuing duty to promote and maintain high standards of conduct • Standards for England abolished • Model Code of Conduct repealed (April 2012?) • Statutory Standards Committees abolished • New statutory register of interests • Criminal offence to fail to register, declare or withdraw for interests • Authorities may adopt non-statutory Code • But no effective sanctions for breach

19. What is left? • Criminal law – • Bribery • Misconduct in public office • Failure to register or declare interests • Theft and false accounting • Civil Liability • Statutory Immunity if acting in good faith and within powers • Moores v Bude Stratton TC • Misfeasance in public office • Defamation • DIY • Broadland DC v Lashley • Injunctions – e.g. harassment • Ombudsman • But not for parish and town councils

20. Key Differences • Interests • Criminal burden of proof • Delay in prosecution / conviction • Remains as Councillor unless 3-month custodial sentence • Lost “Code offences” – • Breach of Equalities • Bullying • Compromising impartiality of staff • Breach of confidentiality • Refusal of access to information • Misuse of position for personal advantage • Misuse of Council resources • Have regard to advice • No ability to suspend or disqualify Councillor mid-term

21. End Piece • Local Government Minister Grant Shapps claimed the changes would be – • “a shot in the arm to local democracy, give councillors the certainty they need to get on and do their job, and give the public confidence that if corruption does occur it will be tackled”. • “Those who abuse their public office for personal gain should be brought before the criminal courts”

22. Transparency on senior pay • A Senior Pay Policy Statement for Chief and Deputy Chief Officers must be approved by the authority before 31st March each year, stating policies on – • Level and elements of remuneration • Remuneration on recruitment • Increases and additions to remuneration • Performance pay • Bonuses • Policy on severance payments • Publication of remuneration information, and • Policy on other terms and conditions (optional) • Remunerations decisions must comply with the Statement

23. Local Referenda - At present • A local authority may conduct a local poll to ascertain local views about any matter relating to – • the authority’s services or • The authority’s expenditure, or • any other matter which affects the economic, social or environmental well-being of the area Section 116, LGA 2003

24. Local Referenda – The New Proposals • A principal authority (may be applied to Parish Councils) must hold a referendum if it receives a relevant petition signed by 5% of local government electors • Can be for whole of an authority’s area or for one or more wards or electoral divisions • A principal authority may hold a referendum if it receives a qualifying and appropriate request from Councillors • Council can simply resolve to hold a referendum

25. The Referendum • Must be held within 2 and 12 months of “trigger date”- • If within 6 months of another local referendum or a local election, hold on that date • Must relate to the authority or its area • Referendum is not binding on the authority, but it must – • ASARP consider what steps it will take (if any) • publish statement of decision and reasons

26. Referenda on Council Tax Increases • Secretary of State will set “principles” by which each authority can determine whether its proposed increase in Council Tax or Precept is “excessive”, and set an “alternative notional amount” as a comparator. • Referendum by billing authority/ies not later than 1st Thursday in May • If “No” vote, substitute calculations on basis of “alternative notional amount” take effect • For precepting authorities, result of referendum is the aggregate of votes in all referenda

27. Community Right to Challenge –Taking over local services and facilities • A “Relevant Body” may submit an expression of interest in providing or assisting to provide a service provided by a principal authority • The authority then undertakes an appropriate procurement exercise • “Relevant Body” = • Voluntary or community body • Body or trust for charitable purposes only • Parish Council • Two or more employees • Such other person or body as specified

28. Acceptance / Rejection of Expression of Interest • Consultation Paper offers serious restrictions on the right to challenge – • Not where the bidder as no capacity to deliver the service • So, not for regulatory services requiring delegation of statutory powers • Not where service cut or decision taken to cut • Not where existing procurement timetable • Not where part of integrated or shared service • No prohibition on DSO bid (but beware Pension Reform!) • Could still be used as challenge to service reductions

29. Land of Community Value • Community Interest Group or local authority may nominate land as being “of community interest” • Local authority determines on strict criteria – • Includes past, current and potential use • If landowner wants to sell – • Notify local authority • Moratorium of up to 6 months to allow community bid. • No requirement to sell at all or at undervalue • Compensation liability on local authority • Expect all local authority land to be nominated

30. Neighbourhood Planning • Community Right to Build Order • grants planning permission for specific development on a specific site • Neighbourhood Development Order • Increases “permitted development” for a defined area • Neighbourhood Development Plan • Local Plan for local area • Can transfer Development Control responsibility to a “Community Organisation” • Each must be – • Proposed by a Community Organisation • Subject to 50% approval in local referendum

31. Consultation before Planning Application (Clause 102) • Development Order may prescribe descriptions of development for which the applicant must consult before submitting a planning application

32. Nationally Significant Infrastructure Projects • The Commitment - • “We will abolish the unelected Infrastructure Planning Commission and replace it with an efficient and democratically accountable system that provides a fast-track process for major infrastructure projects.” • (The Coalition, A Programme for Government)

33. Nationally Significant Infrastructure Projects Previously – • Secretary of State may make National Policy Statements for certain types of infrastructure • must lay NPS before Parliament and explain if challenged • Requirement for pre-application consultation • Infrastructure Planning Commission inspectors conduct planning enquiry on planning proposals • Where within NPS, inspectors may grant or refuse planning permission • Outside NPS, inspectors recommend to Secretary of State who can make Consent Order (Planning Act 2008)

34. Nationally Significant Infrastructure Projects Now – • Secretary of State may make National Policy Statements for certain types of infrastructure • NPS subject to negative resolution in Parliament • Requirement for pre-application consultation • Infrastructure Planning Commission inspectors TUPE to DCLG and conduct planning enquiry on planning proposals • Where within NPS, inspectors may grant or refuse planning permission • Outside NPS, inspectors recommend to Secretary of State who can make Consent Order (Clauses 107-118)

35. Local Authority Publicity –The Publicity Code and the Localism Bill Peter Keith-Lucas 11th March 2011