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The High Court (Mrs Justice Andrews DBE) has handed down judgment in a case concerning the government’s new powers in s.4A of the Local Government Act 1986. These allow the relevant Secretary of State to enforce compliance with the 2011 Code of Practice on Local Authority Publicity. Aspects of the Code, which are aimed at regulating all forms of publicity issued by local authorities (including newspapers and newsletters) have proved controversial, and various local authorities have refused to comply with it, arguing that they are not obliged to do so. 

One of the 2011 Code’s provisions had been to require local authorities to publish free local newspapers no more than quarterly. This was in order to prevent unfair competition with independent local newspapers. However, the Claimants published their local newspapers every fortnight, on the basis that there was no underlying obligation to comply with the Code and they had good reason not to do so. They sought judicial review, contending that the exercise of the s.4A power in their cases had been flawed by misdirection, was disproportionate, had constituted a broken promise and thus an abuse of power, was a breach of the public sector equality duty, and had given rise to unlawful state aid. 

The Court rejected each of the grounds. The Secretary of State had been entitled to proceed on the basis that authorities should now be expected to comply with the Code; he did not (for example) have to prove in each case that unfair competition had been caused to independent local newspapers. The correct test was not proportionality but rationality, since any impact on the Article 10 rights of residents to receive information was very limited; and the context was in any event a predictive judgment by the executive about social matters. The exercise of the power had been rational. There had been no promise not to enforce, so there was no unfairness. The potential impact on groups with protected characteristics was a matter of judgment, which had been exercised after due regard to the matters set out in the Equality Act. And the state aid claim was not sustainable because there was no evidence of an impact on trade between Member States. 

The full judgment can be read here.

Sir James Eadie QC and David Pievsky acted for the Secretary of State.

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