Allison Cook and Mark Heath consider the role of the Monitoring Officer in the coronavirus pandemic.
Now more than ever, it is essential that the Monitoring Officer understands the intersection between politics and democracy. What issues should MOs consider during the COVID-19 pandemic?
Politics has been defined as "the activities associated with the governance of a country or area, especially the debate between parties having power".
Democracy has been defined as "a system of governance / government by the whole population or all the eligible members of a state, typically through elected representatives".
Local authority governance is the framework within which decisions are made and implemented. These aspects are essential to sound decision-making by public bodies. These are not simply 'tick the box' type requirements.
Those entrusted with making decisions on behalf of the public are required to follow these legal obligations as embodied in a council’s constitutions. Doing so ensures that councils follow the key requirements of openness, accountability, and transparency. The process is prescriptive and not optional. It is key to the health of our democratic way of life.
Now of course we have virtual meetings across the public sector. These bring challenges. The MO must straddle the line, protecting democracy at a unique and challenging time whilst also recognising and supporting members in their 'political', if not 'party political' roles.
There are other aspects of this intersection which the MO has to juggle. This ranges from the prohibitions on the publicity in the Local Government Act 1986 and the restrictions in the accompanying Code of Recommended Practice to the appointment of political assistants and their role.
What about the use of powers (making decisions) for 'party political' reasons?
Powers conferred on a local authority must be used lawfully and for the purpose conferred. The courts have made it clear that such powers may not lawfully be exercised to promote the electoral advantage of a political party. But of course, politicians will make decisions mindful of, and hoping to receive, public approval. In Magill v Porter  UKHL 67 – the leading case on the exercise of local authority powers for the electoral advantage of a particular political party - the court said:
“Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the life blood of democracy and a potent spur to responsible decision-taking and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise. But a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party”.
What about the right to freedom of expression?
Of course, Article 10 ECHR protects the right to freedom of expression. Such freedoms may be restricted but only to the extent which is necessary in a democratic society in response to a pressing social need. Any restriction must be proportionate to the legitimate aims being pursued, in this case good administration and reasonable standards of political discourse. Political expression – what is said or published by elected representatives such as councillors – is of particular importance and hence receives enhanced protection under Article 10.
The law has held that there is little scope for restrictions on political speech or debate on questions of public interest (Lombardo v Malta (2009) 48 EHHR 23). The enhanced protection of Article 10 applies even when the speech does not concern overtly party political or policy matters. Political expression is to be given a broad interpretation. It encompasses matters of public concern and public administration generally.
And who defends these rights but also upholds the rule of law? Who defends 'the life blood' of our democracy by judging when politics and politicians go too far, but also allows legitimate debate and protects the crucial aspects of democratic decision making? The Monitoring Officer. That’s who.
And now, as we hold virtual meetings which bring so many extra challenges, that role has never been more important. Nor has it been more demanding.