Section 2(1) of the 1986 Act (as amended) prohibits the publication by a council of any material which appears to be designed to affect public support for a political party.
The scope of s2(1) is wide. To establish a breach, it does not have to be shown that publicity material is designed to affect public support for a political party or that it was intended to do so.
The test is objective and it is no answer that the purpose of the publisher was untainted by an intentional or reckless disregard of the law. It is sufficient that the publicity appears to be designed to affect public support for a political party, having regard to the likely effect on those at whom it is directed.
The ban imposed by s2 extends to financial or other assistance being given to any person for the publication of material which the council is prohibited from publishing (see s2(3)). Further, the provisions of Part V of the Local Government and Housing Act 1989 require councils to ensure that local council-regulated companies do not publish any material which would contravene s2 of the Act.
Breach of s2 not only makes any expenditure incurred unlawful but could also result in the commission of a criminal offence under s75(1) of the Representation of the People Act 1983. This makes it an offence for expenses to be incurred to promote or procure the election of a candidate by any person other than the candidate, his election agent and persons authorised in writing by the election agent, on account of presenting to the electors the candidate or his/her views or
disparaging another candidate.
Section 4(1) of the 1986 Act provides that the secretary of state may issue codes of practice on council publicity. It is a common fallacy, however, that observance or breach of the code of practice issued pursuant to s4 is relevant to whether s2 has been breached.
However, part 43 of the code of practice should be kept in mind at all times. It provides that: 'Particular care should be taken when publicity is issued immediately prior to an election or by-election affecting the authority's area to ensure that this could not be perceived as seeking to influence public opinion . . . Between the time of publication of a notice of an election and polling day, publicity should not be issued which deals with controversial issues, or which reports views or policies in a way that identifies them with individual members or groups of members.'
In considering whether there is a breach of s4(1) it should be remembered that the section does not require councils to follow the code but to have regard to its provisions. A council would be susceptible to challenge on Wednesbury grounds if it failed to consider the guidance or misconstrued or misapplied it.
However, one or more departures from the guidance, without cogent reason, will be evidence that regard has not been had to the code and may give rise to a finding of unlawfulness.