Business as usual?

April 7, 2010

Purdah - or PERP - is treated very differently by individual local authorities, creating a real headache for monitoring officers. Mark Hynes outlines how the new guidance developed by ACSeS can help.

For the vast majority of Monitoring Officers up and down the country who have responsibility for managing electoral services many will now have to be dealing with queries from officers and Members alike about what can and can’t be done during the period to the run up to the general and local elections on 6 May.

This period, which is often referred to as “purdah” can often mean different things to different people, with some authorities adopting a very light touch approach with a mantra of “business as usual”, whereas others have a much more draconian approach where the authority effectively grinds to a halt with no significant decisions being taken until the elections are over.

The statutory prohibition in relation to political publicity is set out in Section 2 of the Local Government Act 1986. This Act includes Appendix 1(a) – A Schedule of Offences and Penalties under the Representation of the Peoples Act 1983 which is appended to the guidance for candidates and agents issued by the Electoral Commission in January 2010.

The most important provision is Section 75 of the Representation of the Peoples Act 1983 which provides that no expense may be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent with a view to promoting or procuring the election of a candidate on account:-

of holding public meetings or organising any public display or
of issuing advertisements, circulars or publications or
otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging other candidates.

The Government’s Code of Recommended Practice on Local Authority Publicity is concerned with all publicity which a Local Authority may publish but does highlight specific guidance in relation to elections.

The London branch of ACSeS recently debated the problems that can occur for Monitoring Officers when neighbouring boroughs take different approaches to the interpretation of the rules and certainly wanted to avoid the difficulties that can occur when politicians may on occasion conveniently cite a neighbouring authority where a more favourable interpretation on the rules is taken. The London branches have now agreed on new guidance that will avoid these difficulties and the first obvious difference is that the rules no longer refer to the period as ‘purdah’ as it was thought this was no longer a politically correct term and this has been replaced with PERP – Pre-Election Rules on Publicity – which I am sure commentators would agree rolls just as easily off the tongue!

In terms of key messages coming out from the guidance these can be summarised as follows:-

As a public authority the Council’s powers, facilities and resources cannot be used for electoral campaigning or political purposes.

The PERP period is 25 working days before polling day and so for the purposes of the local elections on 6 May starts on 29 March 2010.

During the PERP period all Council generated or funded publicity must be, and must be seen to be, politically neutral. Anything that could reasonably be regarded as giving a political candidate or their supporters/party an advantage in election could fall foul of the rules.

During the PERP period, publicity (including local authority campaigns) are only acceptable if they cannot be perceived as giving support for a political party, a candidate or their supporters.

Councils also need to ensure that publicity should not deal with controversial issues or report views, proposals or recommendations in such a way that identifies them with individual politicians or their party groups. In practical terms this means that Council press releases and other publicity material issued during the election period should not include statements from Councillors. Indeed, any information published by the Council should not include any material which could be regarded as politically pro-active in any way.

Nevertheless, and by way of example it is acceptable for the Leader to respond in appropriate circumstances to events and legitimate service enquiries provided that their answers are factual and are not party political.

The Leader, Cabinet Members, the Mayor and certain other Members hold key political and/or civic positions and as such can comment in an emergency where there is a genuine need for such a response to an important event outside the Council’s control.

There is a general presumption against undertaking new campaigns during the PERP period in any area that might be considered to be controversial in relation to the elections and special care should be taken in relation to current or ongoing publicity campaigns during the PERP period as these could be open to criticism that they are being undertaken for political purposes or they could be misinterpreted as being party.

A number of authorities have Council newspapers and although it is reasonable for such newspapers to continue during the PERP period they should not include columns or articles from politicians including the Leader nor any quotes or comments from elected Members concerning specific issues.

The position of the civic Mayor within an authority should be treated differently given the nature of the civic role and these functions can continue to be discharged during the PERP period. Furthermore, publicity can continue to be issued in relation to such activities provided that it is non-political and does not breach the general PERP principles.

Clearly, the constraints that apply to the Council during the PERP period in relation to published material do not apply to material published by the political parties in their own right. However, where political parties produce their own press releases which prompt the media to ask a Council for a comment the Council’s response needs to be restricted to factual issues only.

During the PERP period Council staff may be called on to provide support for any official or statutory function that Councillors perform, factual briefings and policy advice that is necessary to resolve issues that can’t be deferred until after the election. However staff should not be asked to provide briefings for use in election campaign debates or literature. Furthermore, it would be a potential breach of the Members Code of Conduct for Councillors to include statements in election material which are attributed to Council officers as Members must respect officers’ political impartiality at all times and must not do anything which compromises this.

It is often the case that Ministers and other MPs seek to visit the borough during the election period. This is particularly true with some of the inner London authorities given the proximity of the House of Commons. In accordance with the statutory requirements it is not appropriate for the Council to issue any publicity in relation to such visits or to seek to facilitate the same. This should be left to the appropriate political groups.

The ACSeS guidance is available on the ACSeS website which includes not only the PERP guidance but also detailed appendices setting out the statutory offences including penalties, the Code of Recommended Practice on Local Authority Publicity, the use of schools and rooms for public meetings and relevant extracts from the Members Code of Conduct, details about politically restricted posts and a section on frequently asked questions putting together the experience of the London authorities in this regard. Roll on May 6th!