Standard Monitoring Officer’s Annual Guidance on
Elections
sent to Members & Officers of Birmingham City Council
December 2009
Dear Members &
colleagues,
As per my normal practice on the build up to
elections, I set out below - as a reminder - my 'standard' guidance around the
'elections purdah period'. I have decided to send this guidance a month
in advance as there will be General Election, next year; although the timing of
it is, as yet,
unknown. Furthermore, as there will also be local elections in
In the event of a General Election being
called, therefore, I may have to re-issue this guidance, suitably amended, as
the timetable for the General Election differs from the local elections
timetable; i.e. the General Election Polling Day will be Day 17 from
Day 0 (the Proclamation of the dissolution of Parliament and the issue
of the writ) and the Public Notice for the General Election will be on
Day 3. In the meantime, the elections purdah period for the local
elections commences from
The relevant provisions of the Local
Government Act 1986 and relevant extracts from the general guidance contained in
the City Council's Member / Officer Relations Protocol
are set out for your ease of reference.
Members and officers must
ensure they:-
i) avoid - or do not give the
impression of - breaching any such guidance, as to do so could have electoral
and reputational implications for any member standing for election (or
re-election) and the City Council;
and
ii) if at all possible,
improve the Council's standing and reputation in terms of electoral
matters.
The key guiding principle remains: if anyone
is unsure, members / officers should seek early advice from me (on 303 9991).
The Local Government Act 1986 imposes :-
(a) a prohibition on local
authorities publishing " any material which, in whole or in part, appears
to be designed to affect public support for a political party "; and
(b) a Code of Practice (issued
by the Secretary of State under the Act and currently the subject of a national
consultation) to which local authorities must have regard to in coming to any
decision on publicity.
" Publicity "
is defined by the 1986 Act as being " any communication, in whatever form,
addressed to the public at large or to a section of the public ."
In determining whether any material
contravenes the prohibition mentioned in (a) above, the Act provides that
regard shall be had to a number of matters including "
the time and other circumstances of publication ". It is possible, therefore, that material published by the City
Council could fall foul of the prohibition and be unlawful - especially on
account of its timing (i.e. in the run up to an election). Accordingly, as per
normal practice, if there is a Proclamation of the dissolution of Parliament, officers
will immediately remove the contact details/photos of all current Members of
Parliament for Birmingham & Sutton Coldfield from relevant public places -
such as Council libraries / offices / noticeboards and from the Council's
website.
What is also clear and paramount from case
law, is that no elected member - whether a Member of the Executive, Chairman of
a Committee or any other member - or
Officer will be permitted to use any Council resources for private or
party political purposes. To do so would be a breach of the Act and the Code of
Conduct for Members. A reference to Standards Committee - or the Standards for
In terms of Officers, appropriate
disciplinary action will be taken if there is sufficient evidence of a breach
of the law or the Constitutional arrangements of the Council - for example, Standing
Orders, Financial Regulations, Access to Information Procedure Rules, Scheme of
Delegations to Officers and the Member / Officer Relations Protocol.
One recognises that Council business has, of
course, to continue and must continue during an election period. Publicity
around normal Council business / events must also continue, but it must be
thoroughly thought through so as to ensure the Council 'machinery' is not used
or allowed to be used / manipulated by anyone for private or party political
purposes. If
in doubt, please see assistance.
It is also worth noting, for the avoidance
of doubt, that Councillors who hold positions of special responsibility within
the Council (i.e. Cabinet Members and Committee Chairmen), and who would
normally be expected to make some public comment (on the Council's behalf and
with the use of Council resources) on "issues of the day", will be
permitted to do so.
However, such occasions should sensibly be kept to a minimum during the election
purdah period.
Particularly sensitive or controversial
matters will, therefore, need careful handling around any election period as
they may have an impact on public opinion, for or against any candidate or
Political Party. The Chief Executive, as Head of Paid Service, and/or I, as
Monitoring Officer, will certainly have to be consulted over such matters and
may, in appropriate cases, have to intervene. Hopefully, if prior consultation
has taken place - i.e. well in advance of any such Council business/events –
such interventions should be kept to an absolute minimum and/or avoided all together.
I thank you for your co-operation in this regard.
David Tatlow, Director of Legal Services, is
the Council's Deputy Monitoring Officer and, as such, he can be contacted - if
I am not available - to advise on any urgent matters.
In his absence, Jane Robson and John Wynn can, of course, also be called
upon to advise on such matters.
Chief Officers: Please cascade this
information to relevant staff.
Dr
Corporate Director of Governance (& Monitoring Officer)
~~~~~~~~~~~~~~
Relevant
extracts from Member / Officer Relations Protocol:-
(The full version is available on
the City Council's website)
G ELECTIONS PERIOD AND SPECIAL
RESPONSIBILITY POSTS
27. During the election
period, special rules apply with regard to local authority publicity. For ease
of reference, an extract from "The Code of Recommended Practice on Local
Authority Publicity" appears at Annex B to this Protocol.
28. In terms of any serving
Councillor who may be standing for re-election, it is imperative that s/he
maintains a clear distinction between his/her private wish to stand for
re-election and his/her official duties as a serving Councillor. S/he
should, therefore, be particularly careful to guard against giving any
impression that Council resources are being or could have been used for his/her
re-election and/or private purposes. To do so, could amount, in serious cases,
to a breach of the Code of Conduct for Members and a written complaint could be
made to the Standards for
29. On
30. Members
who are elected to special responsibility posts, including Cabinet Members,
Overview and Scrutiny and Regulatory Committee Chairmen, are provided with a more dedicated officer support to
assist them with the discharge of their higher level duties for the Council.
For the avoidance of doubt:-
(a) this dedicated support is
to allow relevant Members to carry out the duties of that Council post.
Their wider representative work will only be dealt with by the supporting
officers if time permits; and
(b) as with all support
services, such staff should never be asked or used to carry out Party political
or private purposes.
31. "Private
purposes", for the purpose of paragraph 30, also includes undertaking
domestic support tasks (i.e. looking after any Member's children) to enable the
relevant Member to attend Council meetings and undertaking work in connection
with public duties which that Member may undertake for bodies other than the
City Council."
- Annex B -
Relevant extracts from the
CODE OF RECOMMENDED
"Elections, referendums and petitions
41. The period between the
notice of an election and the election itself should preclude proactive publicity in
all its forms of candidates and other politicians involved directly in the
election. 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. However, it is acceptable for
the authority to respond in appropriate circumstances to events and legitimate
service enquiries provided that their answers are factual and not party
political. 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
level response to an important event outside the authority's control.
Proactive events arranged in this period should not involve Members
likely to be standing for election.
42. The Local Authorities
(Referendums) (Petitions and Directions) (England) Regulations 2000 (which
apply under the Local Government Act 2000 to county councils, district councils
and London borough councils) prohibit an authority from incurring any
expenditure to:
(i) publish material which appears designed to influence
local people in deciding whether or not to sign a petition requesting a
referendum on proposals for an elected major;
(ii) assist anyone else in
publishing such material; or
(iii) influence or assist
others to influence local people in deciding whether or not to sign a petition.
Publicity in these circumstances should,
therefore, be restricted to the publication of factual details, which are
presented fairly about the petition proposition and to explaining the council's
existing arrangements. Local authorities should not mount publicity campaigns
whose primary purpose is to persuade the public to hold a particular view in
relation to petitions generally or on a specific proposal.
43. County councils, district
councils and
conform with any specific restrictions on
publicity activities which are required by Regulations under section 45 of the
2000 Act."
- Annex C -
STANDARDS COMMITTEE GENERAL GUIDANCE
ON:
PUBLICITY AND COUNCIL DECISIONS - updated May 2008
The purpose of this General Guidance is to
inform all Councillors of the obligations with regard to publicity of Council
decisions in the build-up to local elections (i.e. from Notice of Elections to
Polling Day). This General Guidance:-
(a) builds on the General Guidance
issued by the Monitoring Officer, on 10th December 2003, to the Chairmen of
Ward Committee and which was endorsed by the Standards Committee on 8th April
2004; and
(b) has proved necessary in
order to ensure clarity in the arrangements and so as to avoid any unnecessary
complaints being made against Councillors for using Council resources for Party
Political or other unauthorised purposes. As Councillors know, a breach of the Code of Conduct for Members can be the subject
of a written complaint to the
Standards Committee and, ultimately to the Standards for
During 2003/4, leaflets have been referred
to the Council's Monitoring Officer highlighting that certain Councillors were
portraying Ward Committee decisions as their own decisions - without reference
to the Ward Committee - and ignoring the fact that Councillors from other
political parties may also have agreed with the decision taken by the Ward
Committee.
These issues have been particularly acute in Wards that consist of two or three
political parties.
The Standards Committee has, therefore,
reinforced the Monitoring Officer's General Guidance that Executive and
Committee decisions - including Ward Committee decisions - are the decisions of
the City Council and should be portrayed in such a manner. It is wrong,
therefore, for a Councillor to give the impression that s/he, for whatever
reasons, was the sole
determinant of decision(s) unless, of course, as a matter of recognized fact,
that was the case.
The fact that a Councillor is a serving
Councillor can, of course, be stated on any elections material.
Councillors must, however, be careful to ensure that:-
(a) All Council business reported in any Party Political
leaflet(s) or other publication(s) produced by or for them or their Political
Groups are factually correct and must not mislead or be intended to mislead
members of the public; and
(b) When Council telephone /
fax numbers and/or e-mail addresses are printed in Councillor leaflets or other
publications from the Political Group, it must be made clear to the reader that
such numbers and addresses can only be used for contacting the Councillor in relation
to Council business . For all other non-Council / Party Political
business, separate telephone / fax numbers and /or e-mail addresses must be
given in the same leaflet/publication.
With specific reference to grant-aided
projects, the Executive/Committees should not approve any projects during the
build-up of any elections or delay approving / implementing any projects until
such time if those projects are likely to be interpreted as effecting or likely
to effect the outcome of any elections. In order
to protect and safeguard Councillors, therefore, if there are exceptional
circumstances that require projects to be approved during the build up to the
elections, the Monitoring Officer should be consulted well before the
appropriate time.
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