Publicity in the run up to elections

The Government code on local authority publicity requires councils to take particular care over publicity in the notice period of an election, which in this case is Monday 30 March to Thursday 7 May.

The restrictions seek to ensure that there is no appearance of support for any particular party or individual seeking election.

This requirement applies to all elections affecting all or part of a council’s area. Our policy in Surrey is to apply strict restrictions on publicity issued by the council in the run up to elections.

This year sees parliamentary elections as well as elections in each of Surrey’s districts and boroughs (either wholly or in thirds). Some of Surrey’s county councillors will also be standing in these local elections.

To avoid any confusion or difficulty the rules about publicity issued by the council during the pre-election period are outlined below.

  • Publicity issued by the council should not be liable to misinterpretation as being party political.
  • The period between the notice of an election and the election itself should preclude proactive publicity in all its forms for candidates.
  • Publicity should not deal with controversial issues or report views, proposals or recommendations in such a way that identifies them with individual members or groups of members that could be identified with a political party.
  • Proactive events arranged in this period should not involve members standing for election. For example, this would include photo opportunities and press conferences.
  • Photographs or other publicity material produced by the county council cannot be used for any political purpose. This includes social media and means platforms supported by the county council (eg. corporate Twitter accounts) cannot be used for political purposes.
  • The business of the council must continue and press releases and publicity activity will be ongoing in the pre-election period. However, officers must ensure that publicity cannot be perceived as seeking to influence public opinion in an election area or promote a candidate or group of candidates.

In practice this means:

  • Nothing can be publicised by officers on behalf of members standing for election that gives publicity to controversial issues or which reports views or policies in a way that identifies them with the individual members or groups of members.
  • Press releases will continue to be issued and will quote the relevant member if they are not standing for election.
  • Photo opportunities and other events, which could be seen as giving an unfair advantage to any candidate or party, will not be organised or promoted by county council staff. This includes the use of schools, libraries, youth centres or any other county council building to promote a candidate in the elections.
  • These restrictions, set out in the code, apply only to official publicity produced by the county council. There are of course no Local Government Act restrictions on the publicity activities of the political groups or individual members.

These restrictions, set out in the code, apply only to official publicity produced by the county council. There are of course no Local Government Act restrictions on the publicity activities of the political groups or individual members.

The same principles apply to the services that democratic services provide. We will continue to offer as full a service as possible but there may be certain activities that could be seen to promote local election candidates that we may not be able to do. The underlying principle is that the council may support members in their capacity as councillors but not by law as local politicians.

Key points about publicity in the run up to the elections

1. Members who are standing for election cannot be quoted in press releases or publicity. Other members can be quoted.

2. All publicity must be non political – this includes council-organised events, leaflets, press releases, it can also include sponsorship, events and posters and even the colour of floral displays.

3. No political posters or leaflets can be displayed on council premises (includes street lights etc) or vehicles.

4. Officers must be politically neutral. The basic principle for any council officer is that they should not carry out any activity that would call into question their political impartiality, or could give rise to the criticism that public resources are being used for party political purposes.

5. There must be no proactive publicity that could be seen to support a political party or candidate.

6. Council resources cannot be used to support political campaigning – this includes photographs. Members must not use any Surrey County Council IT equipment for electioneering purposes or publicise their Surrey County Council email address on any election leaflet or publication.

7. Council business must continue as normal.

8. No candidates can use council or education authority premises in an election campaign by visiting them for electioneering purposes and this includes schools. This is especially relevant to photo opportunities.

9. Members holding key political or civic positions should be able to comment in an emergency or where there is a genuine need for a member response to an important event outside the authority’s control.

Where appropriate, officers should get guidance. Please contact Paul Marinko on 0208 541 7267.

Code of Recommended Practice on Local Authority Publicity.

The relevant section of the Code states that:

Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections and referendums. It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

In general, local authorities should not issue any publicity which seeks to influence voters. However this general principle is subject to any statutory provision which authorises expenditure being incurred on the publication of material designed to influence the public as to whether to support or oppose a question put at a referendum. It is acceptable to publish material relating to the subject matter of a referendum, for example to correct any factual inaccuracies which have appeared in publicity produced by third parties, so long as this is even-handed and objective and does not support or oppose any of the options which are the subject of the vote.

 

Publicity
Publicity is defined widely in Section 6 of the Local Government Act 1986 as “any communication, in whatever form, addressed to the public at large or to a section of the public”.

As well as covering the obvious forms of publicity such as leaflets and press releases, it can also include sponsorship, events and posters and even the colour of floral displays. Importantly it also covers photos.

Publicity produced by the local authority is restricted at all times by the Local Government Act 1986 (as amended) and by the Code of Practice produced as a result of the act, as well as by the general limits on the powers of a local authority. However, in the run up to an election, further rules apply.

There are specific rules relating to election notices and literature published by agents to promote an election campaign. It is an election offence not to comply with those rules.

The Local Government Act 1986
Section 2 of the Local Government Act 1986 makes it clear that a local authority should not publish, or arrange for the publication of any material which appears to be designed to affect public support for a political party.

This includes:

  • The content and style of the material
  • The time and circumstances of publication
  • The likely effect of publicity on people
  • Whether the material promotes or opposes a point of view which is identifiable as the view of one political party but not another
  • References to a political party or to people identified with a political party.

The council is also forbidden to give financial or other assistance to other bodies to enable them to publish material that the authority may not publish.

Misleading publicity or media coverage
It is acceptable for factual inaccuracies in the media or other publicity (eg: issued by parties or candidates contesting the election) to be corrected by the council, so long as this is even handed and objective.

Photographs
Photos are covered by the code. Photos taken for one purpose, or taken previously, cannot then be re-used in a different context. For example, a photo of the Chairman of the Council wearing the chains of office may seem quite innocuous, but if it’s re-printed in an election leaflet and therefore deemed a “political” photo when they are wearing their chain, its use may be challenged.

Conclusions
The council must be especially careful in producing publicity in the run up to elections. The first point of contact on publicity issues is always the Head of Communications and her team. She will seek the Monitoring Officer’s advice and input as necessary.

By keeping in mind the wide definition of publicity, checking with communications where there is any doubt and by reminding members and officers about the high standards of conduct required at election times, problems will be kept to a minimum.

Decision-Making
There is no statutory restriction on the council’s decision-making, meetings, or political debate during the election campaign. It is “business as normal”. However, given the restrictions on publicity, it may be that while the council’s decision-making can carry on other factors may well limit it. Also there will be practical issues if members are involved in elections.

Officers should, therefore, consider very carefully whether it is wise to bring forward any matters for decision during an election campaign that could be politically contentious. The profile of issues will be increased in this period and could have more prominence than at other times. This may distort decision-making and create a risk that the decision will be made on party political grounds rather than on its merits and, therefore, it is challengeable.

Officers should not permit any issues to be deliberately brought forward during the campaign to create political advantage. If officers feel that such a situation is being created, they should talk to their Strategic Director or the Chief Executive who will seek advice from the Monitoring Officer.

Consultation
Officers should also consider decisions planned to take place after an election campaign and ensure that any consultation does not run through the pre-election period. It may be appropriate to postpone consultations once an election has been called. Consultation should not be launched during an election period.

It is important that officers do not do anything during an election period that will compete with the candidates for public attention. If a consultation has already started, and runs through the election period, it may be appropriate to extend the consultation period and put out extra publicity for the consultation after the election.

If a consultation is aimed solely at professional groups it will not have the same impact as those where a very public and wide-ranging consultation is required. Officers should take account of the circumstances of each consultation.

During an election period, officers can receive and analyse responses to consultation ready to put proposals to decision-makers, but they should not make any statement or generate publicity during this period.

The following general principles should always be followed:

  • There should be even-handedness in meeting information requests from candidates and from different political parties. Such requests and responses should be handled in accordance with the principles laid down within the Council’s Constitution (Access to Information Procedure Rules, Member/Officer Protocol, etc) and appropriate legislation (Freedom of Information Act 2000, etc).
  • Particular care should be taken over officer support and the use of public resources including publicity for council announcements that have (or potentially have) a bearing on issues relating to the elections.
  • Similar care should be taken over announcement of decisions made by officers. In some cases, it may be better to defer announcements until after the election but these needs to be balanced against any implication that deferral itself could influence the political outcome.
  • Special care must be taken in relation to any publicity campaign to avoid criticism that it is being undertaken for party political purposes. Generally there should not be any new campaigns – including consultation – that might be considered controversial in relation to the election.

Use of Premises and IT
No candidates, at local, national or European elections can use council or education authority premises in an election campaign by visiting them for electioneering purposes, this includes schools. This is especially relevant to photo opportunities.

It may be legitimate in some cases for candidates to visit the facilities and services carried out at premises but this must not be for electioneering.

If a legitimate reason for a visit is identified during the pre-election period, extreme caution should be exercised, and the following rules must be followed and arrangements will be made by the candidates/agents with the relevant officer:

  • The senior officer with responsibility for the function/premises is the final decision-maker about whether a visit can take place. The decision will take account of various factors including, but not limited to, operational concerns. Advice should always be sought from the Communications Service.
  • If there is any possibility that the visit could be used for electioneering it should not go ahead. While the premises may be visited and individuals involved with particular services (eg teachers can meet candidates), no officer or premises can be involved in electioneering. Particular care must be taken by local authority employees and the parties, candidates and agents to avoid this. In some circumstances, events may not be appropriate due to the inability to separate the event from electioneering. Alternatively, council staff may be advised not to participate in the event, even if the facility is made available for a visit.
  • Any candidate/party is entitled to the same rights as the candidate/party seeking the invitation. Candidates of all parties (and independents) must be treated at all times in an even-handed way.

Where properties are not the responsibility of the local authority, visits will be determined by the relevant organisation eg NHS Trust for hospitals. If these organisations seek advice, the decision rests with them but there is an expectation that the candidates of all parties will be treated in an even-handed way. Particular care must be taken in relation to education establishments not to involve children in overt or indirect electioneering or inappropriate media coverage.

Where there are partnership arrangements, for example where one agency owns the land and a number of agencies collaborate in a partnership project, the lead will be taken by the agency with responsibility for the premises. The other agencies should be involved in discussions surrounding such an event to establish their level and/or extent of involvement. An example may be, the district council making a decision about an event because they are responsible as the landowners/landlords and the local authority’s staff not participating in an event to avoid compromising their impartiality – this does not necessarily mean that the event will not take place.

It is important that candidates and their agents observe these principles and understand that any request for an event needs to be made in a timely and effective manner and to the correct body/individual. In most cases, where there is any uncertainty, particularly in relation to partnerships there should be discussions well in advance of the event with the relevant Strategic Director or Head of Service.

Entitlement of Candidates to Use Rooms
Under the Representation of People Act 1983, candidates are entitled to use certain rooms free of charge for election meetings, subject to certain conditions. Section 95 covers holding public meetings re parliamentary elections and Section 96 for local elections. A public meeting is not defined in the act.

In many cases, this relates to a request to use schools or school rooms (please note that school means community, foundation or voluntary schools), but it is important to understand that it is not solely related to the use of schools.

This statutory right to use rooms is entirely separate to the issues raised in the rest of this note.

The only circumstances in which a candidate is not entitled to use a room for an election meeting is:

  • Where the candidate has not given reasonable notice.
  • Where the candidate’s use of the room would interfere with the use of the room for an educational purpose or another pre-agreed purpose.
  • Where there is a prior agreement for the letting of the room.

Candidates using rooms are required to meet expenses incurred in the use of the room, including restoring it to its usual condition after the meeting. If there is any damage to the room, the cost of this must also be met.

The local authority (this includes the Local Education Authority) is required to prepare a list of rooms which candidates are entitled to use. The authority can exclude a room where it disputes the right of candidates to use it but this must include all candidates.

In the case of schools, candidates are entitled to use suitable rooms. The schools can determine what rooms are suitable and unsuitable. The list of rooms must indicate the person to whom the applications for use are to be made, and the Returning Officer will keep the lists prepared by the local authority. The local authority is obliged to inform the Returning Officer of any changes to the rooms and candidates and agents are entitled to inspect the lists. It is suggested that in schools, the person to whom an application should be made is the head teacher and in other cases the relevant Head of Service/Strategic Director. An application should never be made to the Returning Officer although their advice may be sought, and in respect of any Section 95 and 96 applications, they should always be informed of any such applications.

Sections 95 and 96 create specific statutory rights and a local authority can develop or apply any policy that discriminates between candidates.

The local authority cannot refuse a candidate the right to use a room on public order grounds. If the local authority has concerns about public order at an election meeting, it is imperative that it advises the Returning Officer immediately and liaises, in consultation with the Returning Officer, with the police. It is the police who have responsibility for maintaining public order using the powers available to them.

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