A New Ethical Framework for Local Government in Scotland

Annex B - Politically Restricted Posts in Local Government

The current restrictions

1 The Local Government and Housing Act 1989 and the Local Government Officers (Political Restrictions) Regulations 1990 (SI 1990/851) provide the legislative framework for the restrictions. Section 2 of the 1989 Act defines as “politically restricted” the highest categories of local government post (chief executive, chief officer and deputy chief officer), the monitoring officer and, in addition, those posts which are listed by their authorities and: i. carry salaries exceeding a prescribed level; or ii. involve giving advice to the authority on a regular basis or speaking on a regular basis to journalists or broadcasters on behalf of the authority.

2 The 1990 Regulations set out the nature of the restrictions which apply to officers in these politically restricted posts. If an officer holds such a post, the restrictions specified in the Regulations are deemed to be incorporated into his or her terms and conditions of employment. The current restrictions are set out in the Schedule to the Regulations: Part I applies to all post holders and Part II applies to post holders other than political assistants. Part III applies only to holders of political assistant posts, which are not covered by this review.

3 The Part I terms and conditions prevent the post holder from: (i) announcing an intention to stand for election to the House of Commons, the European Parliament or a local authority (paragraph 1); (ii) continuing to hold office if he gives notice of his resignation in order to announce an intention to stand for election to the House of Commons (paragraph 2); (iii) acting as an election agent (paragraph 3); (iv) holding office in a political party if the office is involved with general management of or acting on behalf of the party (paragraph 4); and (v) canvassing on behalf of a political party (paragraph 5).

4 The Part II terms and conditions prevent the post holder from: (i) speaking to the public with the apparent intention of affecting support for a political party (paragraph 6); and (ii) publishing or causing to be published written work or other material if intended to affect public support for a political party as opposed to, for example, displaying a poster on private property (paragraph 7). These restrictions do not apply, however, to activities which are necessary for the proper performance of the post holder’s public duties (paragraph 8).

5 The Secretary of State for Scotland has appointed an independent Political Restrictions Exemptions Adjudicator under section 3 of the 1989 Act. His functions include the granting of exemptions from political restrictions in the case of “listed” posts. Such exemptions must be granted if the duties of the post do not include regularly giving advice or speaking to the media.

Coverage of the restrictions

6 The largest category of politically restricted posts is that covered by the lists that authorities are required to maintain under section 2(2) of the 1989 Act (see paragraph 1 above). Section 2(2)(a) originally required a local authority to include in its list “the full time posts the annual rate of remuneration in respect of which is or exceeds £19,500 or such higher amount as may be specified in or determined under regulations made by the Secretary of State”. Regulations have been made under section 2(2) which increase the annual rate of remuneration at which posts are required to be included in lists. The current regulations are the Local Government (Politically Restricted Posts) Regulations 1990 (SI 1990/42), which prescribe the threshold as “the amount assigned to spinal column point 44 of the salary scales for local government officers incorporated in the National Joint Council’s Scheme . . .” plus any relevant allowances. This amount was £25,746 in 1996/97 and is £26,391 in 1997/98.

7 Under section 2(2)(b), part-time posts are to be included in lists if the full-time equivalent salary is at or above the prescribed threshold.

8 Local authorities’ approach to the listing of posts giving advice or speaking to the media differs widely but it is clear that a significant number of posts below the salary threshold are listed across Great Britain. Many of these involve close contact with members, or with council committees.

The civil service

9 The scheme in Part I of the 1989 Act for determining the political activities of local government officers which should be restricted, and the categories of officers to which the restrictions apply, is analogous to the scheme for civil servants set out in the Civil Service Code and the Civil Service Management Code.

10 The 1997/98 salary threshold for local government officers is lower than the range minimum of £27,000 for Grade 7 in The Scottish Office. Civil servants in Grade 7 and above are “politically restricted” but may take part in local (though not national) political activities with the permission of their employing Department provided the granting of such permission leaves no room for doubt about the post holder’s political impartiality. Sensitive posts carrying lower salaries are also politically restricted if they involve close contact with Ministers or giving advice.

11 A summary of the restrictions applying to civil servants is at Appendix 1. A comparison of their coverage in local government and the civil service is at Appendix 2.