Officers and the EU Referendum

Ian de Prez looks at the issues around whether a politically restricted local government officer can participate in the EU referendum campaign.

Is it lawful for a politically restricted local government officer to participate in the European Referendum campaign? It seems a good time not only to offer an answer to this question, but to reflect more generally on the restrictions imposed by the Local Government Officers (Political Restrictions) Regulations 1990 (SI 1990/851) made under the Local Government and Housing Act 1989.

The regulations make it unlawful for certain senior officers (broadly speaking, senior managers and those who give professional advice to members) to be actively involved in political parties, but do not forbid bare membership of a party. They do not create any criminal offences, but automatically insert into the relevant officers ‘contracts of employment various provisions set out in their schedule - forbidding standing as a candidate for parliament or principal councils, or announcing your intention to do so, being an election agent, or an officer of a political party or any branch thereof, or canvassing or speaking or writing publicly in favour of a party.

Before 1990 the only statutory restrictions on political activity were the minimal ones in the Local Government Act 1972 forbidding an employee from being a councillor in the same council, and an ex-councillor from being employed by the same council for one year.  A colleague once told me how, in the 1980’s, the Leader of his then council employer was chief executive of the neighbouring authority. This resulted, he told me, in a very interesting and extremely well informed local politician. David Widdicombe QC, whose recommendations in his report on the Conduct of Local Government Business were given effect in these regulations, clearly considered that if there were any advantages in this kind of situation, they were far outweighed by the disadvantages.

The resulting regulations were controversial when first introduced, but look as if they are here to stay, having remained on the statute book for a quarter of a century and survived several changes of government. NALGO (and later UNISON) supported a judicial review of the regulations brought by four officers, including a solicitor, which was dismissed by the Court of Appeal in 1992 [1]. That case eventually found its way to the European Court of Human Rights in 1998, where it was also unsuccessful [2].

Many local government officers regard the restrictions as, in the main, no more than a codification of what common sense, good manners and professionalism require. Some, indeed, refrain from the bare membership of a party, and the discrete behind the scenes help, that are not forbidden by the regulations. I have heard several accounts of officers who have experienced uncomfortable moments, despite acting entirely within the law, including a friend who joined a party, only to leave soon afterwards, when councillors kept asking her to deliver leaflets for them. All of the political parties surely need to respect the scruples of those public servants who do find it possible to join them, mindful that retirement, or a career change might allow them to take a more active role one day, if they are not driven away in the meantime.

Particular aspects of the regulations continue to be criticised, including the total ban on canvassing. It has been suggested to me that, although public neutrality in one’s own workplace and its locality is important, there ought to be no objection to canvassing in another part of the country.

In 2004 a consultation exercise by the Office of the Deputy Prime Minister did not lead to any significant changes. It did provoke a thoughtful response from SOLACE, the local government chief executives’ organisation. SOLACE referred to significant changes in the world of local government that had occurred over the previous 15 years. Councils employed 10% fewer people than they had done in 1989. Some of those were now to be found working for companies formed for housing management purposes or leisure trusts. This, it was suggested, had caused some unfair anomalies, where a directly employed officer was politically restricted, but the outsourced equivalent, doing essentially the same job, was not. SOLACE conceded that the restrictions should apply to the most senior officers (statutory chief officers and some deputies and heads of service) but argued that in other cases it should be a matter for individual contractual arrangements.

A successful professional relationship can exist in spite of political differences. Senior barristers whose political views are well known have been instructed by councils of a different political stamp. Distinguished solicitors such as the late Labour peer Lord Mishcon have been the trusted advisers of politicians in different parties. However it is important to note that in those cases the client had a totally free choice.

There is a different sense in which the regulations might be considered out of date, which is illustrated by the referendum campaign. The regulations are very much formed with reference to active support for and involvement in political parties. The older political parties no longer command the mass memberships that were taken for granted in the middle of the last century. Commentators of all persuasions refer to a diminished enthusiasm for party politics. However, campaigns about issues like the environment, human rights, civil liberties, electoral reform or gender and sexual equality are more of a feature of political life. Many who participate in this broader sort of politics are not members of any party, and sometimes the support for (and opposition to) a point of view crosses party lines. Membership of the EU is clearly an issue of this kind.

I daresay that many of the local politicians that we serve, whatever their views, would see a public expression of views on the coming referendum as a breach of the principle of neutrality. However, is it actually forbidden by the regulations, or by any other rule?

Campaigning organisations in the current campaign such as Vote Leave or Britain stronger in Europe are definitely not political parties, so a restricted employee is not in breach of paras 3 or 4 of the Schedule to the regulations by being involved in their management. 

Regulation 4 (Incidental and supplementary – provisions) which applies to paras 6 and 7 of the schedule states:

In determining whether a person is in breach of a term or condition set out in part II of the schedule hereto regard shall be had in particular to the following matters

(a) Whether the appointee referred to a political party or to persons identified with a political party or whether anything said by him or the relevant  work promotes or opposes a point of view identifiable as the view of one party and not of another ; and

(b) Where the appointee spoke or the work was published as part of a campaign, the effect which the campaign appears to be designed to achieve.

I would urge a politically restricted colleague who sought my advice informally not to participate actively in the referendum campaign, because, to me, it is a breach of the principle of political neutrality that we ought ethically to uphold. However, if I was asked to advise a manager whether that same person was in breach of their contract of employment by knocking on doors, or writing to the local press, I would have to say that the short answer was no. The most that the council as employer ought to do is draw the officer’s attention to the provisions set out above, and warn them that a door step conversation, a speech or an article might, depending on the circumstances, be construed as an act of support for, or opposition to a particular political party, even if they did not intend it as such. In other words, campaigning, for in or for out, is not unlawful per se but is, for want of a better word, dangerous.

Perhaps in 1990 it was considered that a ban on non-partly political but controversial campaigning would be too hard to define; it would have needed some complex drafting and would have put the regulations more at risk of legal challenge. I suggest that this remains the case today; there has to be a point at which the letter of the law finishes and good sense and professionalism take over.

Ian de Prez is a Solicitor Advocate at Suffolk Coastal District Council. (The views expressed here are personal, with no intention of affecting support for any political party or influencing the referendum campaign!)