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‘Gagging Clause’ would be bad legislation, even without HS2

‘Gagging Clause’ would be bad legislation, even without HS2

🕔09.Oct 2013

“Don’t focus on the headline”, insisted the Daily Mail spokespersons, deputed to defend their paper’s attack on Ed Miliband’s father. It seemed as irrational as it was unconvincing. What’s a headline for, if not to attract our attention? Besides, the unpleasant headline seemed no more or less malicious than the article’s content.

In the case, though, of Monday’s headline for Paul Dale’s blog on the local authority publicity code – “COUNCILS FACE ANTI-HS2 CAMPAIGN ‘GAGGING ORDER’, WARNS LOCAL GOVERNMENT ASSOCIATION'” – it did make a certain sense.

Perhaps there are occasions – like when the Chamberlain Files seems keen to extend HS2 Week indefinitely by any means at hand (Sub-Ed Note: Click here for HS2 Week) – when we should press on regardless of the headline. This was not really an HS2 story, but a bad legislation story: an important account of what would be a really bad piece of legislation, even if HS2 had never been invented.

Indeed, Paul’s report made this quite clear. I’ve no argument with any of it – with Paul’s report, that is – and will simply add a bit of context and reinforcement.

We’re looking specifically at Clause 38 of the Local Audit and Accountability Bill, which completed its passage through the Lords before the summer recess and gets its Commons Second Reading later this month. The Bill’s main and originally entire purpose, embodied in Clauses 1 to 37, is to complete the abolition of the Audit Commission and introduce from 2017 a new regime for local authorities and other public bodies, enabling them to appoint their own auditors.

Compromising the fundamental public audit principle that public bodies should not appoint their own auditors, it’s clearly a major and controversial development. It’s not the concern here, though – except insofar as its importance has inevitably overshadowed anything else in its vicinity, including Clause 38, one of two tacked on by Ministers long after MPs’ scrutiny of the draft Bill had been completed.

Clause 38 is the Government’s intention to turn the Code of Recommended Practice on Local Authority Publicity from a set of guidelines with which councils are currently ‘advised’ to comply, into a statutory document with which they must comply.

There are several things wrong with this, quite apart from Ministers’ extraordinary Humpty Dumpty attempt – “when I use a word, it means just what I choose it to mean” – to label it an exercise in ‘localism’, because it seeks to protect the interests of local newspaper publishers against those of elected local authorities.

The substantive problems all stem from the nature of the exercise: turning a voluntary code, whose most objectionable prescriptions and sloppiest phraseology were allowed to pass without extreme protest, into something that needs to be clear, unambiguous and ultimately judicially enforceable.

We’ll look first at the code itself, then at the proposed means of enforcement. The most recent revision of the Publicity Code in 2011 was driven jointly by the Newspaper Society – arguing (without much support from hard evidence) that council publications, rather than the internet and broadband, were the crucial threats to local newspapers’ sales and advertising revenues – and a receptive Communities Secretary, Eric Pickles, two of whose favourite hate taunts are ‘propaganda on the rates’ in the form of ‘town hall Pravdas’ or council newssheets.

Up front in the code are seven key principles: that publicity by local authorities should be lawful, cost effective, objective, even-handed, and appropriate, should have regard to equality and diversity, and be issued with care during periods of heightened sensitivity.

Even here there are examples of the real doozies with which the Code is, and will remain, littered. What do ‘have regard’ and ‘care’ mean? How tall does sensitivity have to grow?

One more: objectivity is infringed by “anything likely to be perceived by readers as constituting a political statement, or being a commentary on contentious areas of public policy”. Whether or not you think it reasonable for a political body to make a political statement or an observation on a contentious policy, what kind of yardstick is the likely perception of all, or most, or some, or a vexatious handful, of your readers?

In a voluntary code, already overseen by numerous laws, auditors, and the Advertising Standards Authority, these vaguenesses are merely irritating and a potential get-out. In a statutory code, they can cost.

Probably the code’s most resented provisions are that, where councils do publish “newsletters, newssheets or similar communications”, they should not be issued more frequently than quarterly, or “seek to emulate commercial newspapers in style or content”.

Birmingham’s quarterly 16- to 20-page Forward magazine, therefore, would probably pass, even with the occasional waste disposal ‘special issue’. With job vacancies mostly going to the separate Jobs4U bulletin, there isn’t much advertising, nor the entertaining selections of Leader snaps that I seem to recall from yesteryear. Indeed, in the issue after Labour took over last May, there were more photos of Usain Bolt than of the Council’s new Leader.

The majority of other council newspapers are now also quarterly, although even a monthly publication – an appropriate and cost effective frequency, one might argue, for keeping residents fully informed of service developments and changes, consultations, forthcoming council business, councillors’ surgeries, traffic orders and planning notices – could hardly be said to be emulating the style of commercial newspapers, whatever that might be guessed to mean.

What we have, then, is one more example of Ministers’ typical modus operandi in their dealings with local government. They see something they don’t like being done by a few London boroughs on their proverbial doorstep – in this case, distributing a weekly newspaper (Tower Hamlets) or fortnightly magazine (Newham). Then, instead of letting residents decide for themselves whether they approve of how their money’s being spent, they outlaw it with ill-prepared legislation applying to every principal and parish council in England – in the name of localism.

Which brings us to the enforcement debate. Clause 38 allows the Secretary of State to direct one, some or all authorities to comply with the Code, whether there are grounds for believing they are currently breaking it or not.

How, though, do you judge either compliance or non-compliance with a code as casually drafted as this one? Even in the apparently straightforward case of council publications, there’s no definition even of ‘newsletter’ or ‘newssheet’ or when either metamorphoses into a newspaper, let alone of what emulating commercial newspapers in style and content entails.

“Contentious issues” – like HS2, a third runway at Heathrow, or some of the others Paul Dale suggested: large housing developments, cuts to police and fire services, hospital closures – are, well, even more contentious.

At present, if an authority feels it or its residents would be severely adversely affected by a government policy, it can “have regard” to the principles of the Code, but still judge the matter sufficiently important for it to explain its opposition in a way that will certainly be perceived by at least some readers “as constituting a political statement, or being a commentary on contentious areas of public policy” – because that’s what it’s intended to be.

Here HS2, and specifically the cross-party 51M alliance of 19 local authorities opposed to it, really do highlight the almost laughable irrationality of the Government’s proposals. The authorities have already challenged the Government’s policy in the High Court, may carry on the fight in the Supreme Court, and will surely petition Parliament for amendments to any eventual legislation.

Yet, if they attempt publicly to explain their case and how they’re spending residents’ and taxpayers’ money fighting it, they would in future risk being individually and/or collectively prevented, on the grounds of infringing the Code.

So, if Ministers were looking for an anti-HS2 campaign ‘gagging order’, Clause 38 might well do the trick. But gagging any council’s questioning of any government policy – isn’t that just a little OTT?

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