That the government shop is under new management is clear. It has a radical new look and feel – and an impatient determination to slim the entire operation and to reshape fundamentally the focus of policy. These impressions were reinforced on 29 September when Communities and Local Government issued its consultation on the local authority publicity code (that is, the code of recommended practice on local authority publicity).

The code is, of course, a creature of the Local Government Act 1986. Section 2 prevents local authorities from publishing ‘any material which, in whole or in part, appears to be designed to affect public support for a political party’. Section 4 enables the secretary of state to ‘. . .issue one or more codes of recommended practice as regards the content, style, distribution and cost of local authority publicity, and such other related matters as he thinks appropriate’. Authorities must ‘have regard to the provisions of any such code in coming to any decision on publicity’ (section 4). Section 6 sets out that ‘publicity’, ‘publish’ and ‘publication’ refer to any communication, in whatever form, addressed to the public at large, or to a section of the public.

The current code has been around (in its first manifestation) since August 1988, receiving a subsequent wash and brush up from the Labour administration in April 2001. The new consultation version is much shorter – one document rather than the current two – and, of course, aligns with current government thinking.

Various reasons are given for the consultation. These include secretary of state Eric Pickles’s wish for less local authority spend on local authority newspapers, with resources instead being directed to frontline services. The government also wants local authorities to cease using lobbyists ‘to get their point across to government’, indicating that they should instead ‘write or pick up the phone’. Similarly, authorities ‘should not have stalls at party conferences with the aim of lobbying government’.

The guidance is now ‘grouped into seven principles requiring local authority publicity to be lawful, cost-effective, objective, even-handed, appropriate, to have regard to equality and diversity, and be issued with care during periods of heightened sensitivity’. The draft guidance elaborates on each of these principles.

Most difficulty is likely to surround the ‘even-handedness’ section (at paragraphs 19 to 25) that concerns elected member publicity. While key elements of the familiar cautionary advice remain (at paragraph 34), regarding the sensitive period between election notice and the election itself, there are complexities nevertheless. For instance, while paragraph 24 advises that it is acceptable for publicity produced or hosted by local authorities ‘to include a logo associated with a particular member of the authority, such as a directly elected mayor, or leader. . .’ on the other hand, publicity material ‘relating to a particular member must not seek to affect public support for that individual’. Local government lawyers may wish to install a safety net before stepping on to this tightrope.

While (per paragraph 23) it is acceptable for publicity containing third-party material hosted by authorities ‘to include logos of political parties or other organisations with which the third parties are associated’, equally this will need to square with the duty under section 2 of the 1986 act not to publish material appearing to be designed to affect public support for a political party.

In line with a substantially altered vision of local government, the consultation strikes a distinctly different note from its predecessors. The consultation can be viewed on the CLG website. The deadline for responses (to publicitycode@communities.gsi.gov.uk) is 10 November 2010.

Legal fogThe position surrounding housing possessions and article 8 of the European Convention on Human Rights has proved extremely complex. In March 2006, the House of Lords in Kay v Lambeth Council [2006] UKHL 10 had rejected a defence to possession proceedings based only on the occupier’s personal circumstances. But on 21 September 2010 the European Court of Human Rights (ECHR) found that the domestic court had not at the material time observed article 8 safeguards for assessing the proportionality of interference with the occupiers’ convention rights.

In Kay the judge at first instance had (in the light of precedent) struck out the occupier’s article 8 defence to possession proceedings, without considering whether the specific personal circumstances arising in each case rendered the council’s decision to seek possession disproportionate. In the House of Lords, the majority had held that, a defence in possession proceedings which did not challenge the law under which the possession order was sought but which was based only on the occupier’s personal circumstances, should be struck out. Lord Hope said that where domestic law provides for personal circumstances to be taken into account (for example, statutory test of reasonableness to make a possession order), then a fair opportunity must be offered for the arguments in favour of the occupier to be given. However, ‘. . .if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 ["Gateway (a)"], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under ­section 3, in a way that is compatible with article 8, or(ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law, on the ground that it was a decision that no reasonable person would consider justifiable ["Gateway (b)"], he should be permitted to do this provided again that the point is seriously arguable. . .’.

The divergence between the majority and minority view in Kay concerned the scope of Gateway (b). Lord Bingham (in the minority) had (in contrast to Lord Hope above) formulated Gateway (b) as: ‘. . .having regard to the occupier’s personal circumstances, the local authority’s exercise of its power to seek a possession order is an unlawful act within the meaning of section 6’. However, the majority in Kay considered that personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by fulfilling the statutory or common law requirements for recovery of possession by the landowner.

In giving judgment in Kay, the ECHR welcomed ‘the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8’, and intimated that, following the subsequent decision of the House of Lords in Doherty v Birmingham City Council [2008] UKHL 57, there might now be more flexibility in the application of the Gateway (b) test.

Even so (and consistently with McCann v UK [2009] 1 FCR 390) the ECHR took the view that the challenge by the occupier applicants to the striking out of their article 8 defences failed ‘because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances’.

Consequently, ‘the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed’ and the applicants were therefore ‘dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal’. In the circumstances, there had been ‘a violation of article 8’.

The Supreme Court is shortly to reconsider these issues in various cases. It is hoped that this may bring some welcome clarity for authorities and others into what is currently a complex legal area.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law, and is also communications officer for the Association of Council Secretaries and Solicitors