DCLG seeks power to direct local authorities’ compliance with Publicity Code

The Communities Secretary has issued a consultation that proposes giving him a very broad power to direct local authorities to comply with the Code of Recommended Practice on Local Authority Publicity (the Publicity Code). The purpose is stated to be to protect the “free press” from unfair competition from local authority newspapers but the power which he is seeking represents a major increase in central government power over local authorities, could cost local authorities considerable sums and damage their ability to discharge their functions effectively.

The paper is available on the DCLG website. The consultation period is short – responses must be submitted by 6 May 2013.

Significant issues

Bevan Brittan's local government team considers that there are some significant issues which should be highlighted in response to the consultation: 

1. Local authority newspapers can be the most cost-effective means of disseminating public information. Typically, regular local authority newspapers enable authorities to deliver timely information about local services and issues to every household at an affordable price. But even the best local newspapers reach less than half local households, and local reporting can fail to give local residents sufficient information to make a balanced and informed decision on local issues. 
2. The proposed power of direction is far wider than the claimed justification of preventing unfair competition with local commercial newspapers. Whilst only Paragraph 28 of the Publicity Code relates to unfair competition, the Secretary of State is seeking a power to direct an authority, or all authorities, to comply with any paragraph of the Code. 
3. The Publicity Code itself contains elements which do not reflect good or bad conduct by local authorities. Specifically, the stricture in Paragraph 26 against the use of lobbyists seeks to deny authorities the ability to get their valid messages on policy and legislation across to MPs and ministers in the most cost-effective manner available. Similarly, Paragraph 27 seeks to prevent local authorities seeking to influence ministers, MPs and party members at party conferences, when the fact that they are gathered it in one place makes this a cost-effective way to get the message across. 
4. The proposal runs directly counter to DCLG’s professed objective of Localism, defined in the Department’s own Structural Reform Plan as being “to free local government from central control, including guidance, rules and funding mechanisms imposed by central departments”. 
5. The Publicity Code was never intended to be legally enforceable. The Local Government Act 1988 recognised that decisions on publicity should be made locally, where individual authorities could decide what was the most effective means by which they could disseminate public information locally. It was drafted as guidance, not as statute. The proposed power of direction is a back-door means to convert the general wording of the Code into quasi-statute. 
6. Where an authority completely disregards the Publicity Code, it is already open to judicial review and audit challenge by local residents or local newspapers, which is consistent with the Secretary of State’s view that local authorities should be accountable locally. So, a central power of enforcement is unnecessary. 
7. Once granted, this broad power of direction is unregulated and wide open to political abuse. It would enable the Secretary of State to make directions against all authorities without any requirement for the approval of, or opportunity for rejection by, Parliament.

Model Response

Bevan Brittan LLP has drafted a more detailed response to the consultation paper, which local authorities are welcome to use as a model for their response. If you would like a copy, please contact Claire Booth.