Roll up! Roll up! Cast your vote! All the fun of the democratic fair! For the local elections are here, once again, on 3 May, across 312 English authorities. And these are important, not only for the democratic legitimacy of local government, but also as a litmus test for the degree of public local democratic engagement. But what's all this about ‘purdah' and having to keep tight-lipped, just when most self-respecting councillors want to be shouting achievements from the rooftops? Mad or what? Not at all. Nothing to do with curbing lawful political activity but everything to do with not spending public money on party political matters. Purdah – or ‘pre-election period', as we may, in future, be calling it, following advice from the Welsh Assembly about potential offence to Muslims and other religious groups – has traditionally been used as shorthand, in particular, for the period between the notice of an election and the election itself. For that's a particularly sensitive time politically, where confusion can easily arise in the public mind between party political communications and those issued corporately on behalf of the authority. But where does all this stuff come from? It was, in fact, a twinkle in the eye of the 1986 Widdecombe inquiry into the conduct of local authority business. This proposed an express statutory prohibition of local authority party political publicity, and the result was section 2 of the Local Government Act 1986. This section provides that a local authority ‘shall not publish or arrange for the publication of any material which, in whole or in part, appears to be designed to affect public support for a political party'. And if there's any doubt as to what this means, section 2(2) of the Act assists by providing that in determining whether the material falls within the prohibition, it's necessary to have regard to the content and style of the material as well as the time and other circumstances of publication, and the likely effect on those to whom it is directed. But there's more. For, also in the equation are whether the material refers to a political party or to persons identified with a political party. Or whether it promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another. And also to be considered, where the material is part of a campaign, is the effect the campaign appears to be designed to achieve. All right then. If the authority can't do it, just pay or help someone else to do so instead. Er, no. For that's out too, under section 2(3). But there's still more. For section 4 of the Act enables the secretary of state to issue ‘one or more codes of recommended practice' concerning – among other things – the ‘content, style, distribution and cost of local authority publicity'. And local authorities must ‘have regard to the provisions of any such code in coming to any decision on publicity'. The current code provides that: ‘Publicity should not be, or liable to misrepresentation as being, party political.' However, it is, of course, ‘acceptable for the authority to respond in appropriate circumstances to events and legitimate service inquiries'. This is ‘provided that their answers are factual and not party political'. The key, of course, is that party politicking should be done by political parties and not by the local authority corporately at the public expense. Authorities do have powers to provide information, etc, on matters affecting local government (section 142 of the Local Government Act 1972). And – significantly, in respect of certain extremist activities – authorities also have a relevant duty in section 71 of the Race Relations Act 1976. This is that in discharging their functions, authorities must have due regard to the need to eliminate unlawful racial discrimination, and also to promote equality of opportunity and good relations between persons of different racial groups. w Nicholas Dobson is national head of local government law at Pinsent Masons
