Government Communication Service Propriety Guidance
A comprehensive guide on best practice in propriety, made specifically for government communicators.
- Propriety guidance and codes of conduct
- Politicians and the press office
- Digital and social media
- Paid publicity
- Direct marketing
- Public relations consultancy
- Commercial and legal sensitivity
- The legislative environment
- Government publicity conventions
Propriety guidance and codes of conduct
Government communicators must carry out their work objectively and without political bias. This guidance has been developed by the Government CommunicationService to inform all government communicators of their responsibilities and provide advice for specific situations they may encounter.
The Cabinet Office is responsible for codes of conduct for civil servants, ministers and special advisers.
The Civil Service Code
On 11 November 2010, the Civil Service provisions of the Constitutional Reform and Governance Act 2010 came into force. This legislation placed the Civil Service values on a statutory footing and included the publication of a Civil Service Code.
First published in 1996 the Civil Service Code sets out the core Civil Service values and the standards of behaviour expected of all civil servants in upholding these values.
- Integrity – putting the obligations of public service above personal interests
- Honesty – being truthful and open
- Objectivity – basing advice and decisions on rigorous analysis of the evidence
- Impartiality – acting solely according to the merits of the case and serving governments of different political parties equally well
Individual departments may also have published their own mission and values statements based on the core Civil Service values
Government Communication Service Propriety Guidance defines how civil servants can properly and effectively present the policies and programmes of the government of the day.
The following basic criteria have been applied to government communications by successive administrations. The communication:
- should be relevant to government responsibilities
- should be objective and explanatory, not biased or polemical
- should not be – or liable to be – misrepresented as being party political
- should be conducted in an economic and appropriate way
- should be able to justify the costs as expenditure of public funds
Publicly funded government communications cannot be used primarily or solely to meet party political objectives. However, it is recognised that the governing party may derive incidental benefit from activities carried out by the government.
The Ministerial Code
The Ministerial Code requires ministers to uphold the impartiality of the Civil Service. They must not ask civil servants to act in any way that conflicts with the Civil Service Code. Ministers must ensure that public resources are not used to support publicity for party political purposes.
Election and referenda guidance
There are additional issues which must be considered in the run-up to local, general and European elections or referenda. Specific election guidance is published by the Cabinet Office prior to each event. As a general guide to the type of restrictions that may apply government communicators are advised to consult previous examples of election guidance.
Guidance for departments on sponsorship
The Government Communication Service have published best practice guidance on communications partnership and sponsorship Planning and Delivering Effective Communications Partnerships Strategies (link)
Politicians and the press office
It is the duty of media officers to present the policies of their department to the public through the media and to try to ensure that they are understood. The media officer must always reflect the ministerial line clearly, even where policies are opposed by opposition parties.
As part of the Government’s duty to govern, it needs to explain its policies and decisions to the electorate. The Government has the right to expect the department to further its policies and objectives, regardless of how politically controversial they might be.
Media officers have a duty to abide by the Civil Service Code and to remain objective and impartial, especially when dealing with politically controversial issues.
Press office dos and don’ts
To work effectively, media officers must establish their impartiality and neutrality with the news media, and ensure that they deal with all news media evenhandedly. Central to the media officer’s specific role is the responsibility to help the public – by helping journalists – to understand the policies of the government of the day.
- Present, describe and justify the thinking behind the policies of the minister
- Be ready to promote the policies of the department and the Government as a whole
- Make as positive a case as the facts warrant
- Speak on the record as a departmental spokesperson wherever possible, and avoid unattributed quotes
- Insist that all political aspects are handled by the party political press office or special adviser
- Feel free to discuss any aspect of propriety with your Head of News and Director of Communications.
- Justify or defend policies in party political terms
- Expressly advance any policy as belonging to a particular political party
- Directly attack the policies and opinions of opposition parties and groups (although, on occasion, it may be necessary to respond in specific terms)
- Oversell policies, re-announce achievements or investments and claim them as new or otherwise attempt to mislead the public.
On a day-to-day basis, media officers should take particular care when handling:
- Decisions taken by ministers fulfilling their statutory responsibilities which directly affect individuals or groups. These must be handled with particular care, to secure an impartial and objective presentation of the case that avoids inaccuracy, inconsistency or bias
- Ministerial speeches or statements
- Ministers using the Press Office to ensure that their policy and actions are explained and presented in a positive light. Ministers can do this, but care must be taken that any press activity is designed to further government objectives.
Dealing with ministers
Ministers don’t always acknowledge the distinction between government communicators and their own party political spokespeople. Consequently, ministers may sometimes ask the Press Office to issue or further distribute through departmental digital channels speeches or statements that cross the border of propriety.
In such cases, it is right to explore whether a compromise can be reached that will not breach propriety. If no such compromise can be found, then it will be necessary to give a polite refusal which, if necessary, will be supported by the department’s Permanent Secretary or ChiefExecutive.
For example, if a speech by a minister included an attack on their political opponents, it would be improper for the department to issue it as an official text. The political attack would have to be omitted from the official release. If the minister wished the full speech to be issued, it would have to come from the press office of the political party.
Issuing official texts
To some extent, the venue for ministerial speeches will determine whether or not texts can be issued by departments. Speeches made at conferences, rallies or occasions organised by political parties should usually be issued by party press offices. All others can be issued as official texts – unless they contain party political messages.
Party conferences and party political events
Civil servants should not be asked to attend or take part in party conferenceswith their minister. However, not everything that happens at a party conference is taboo – a minister may use it to make an important policy announcement. In such a case, the communication directorate would expect to be told in advance and to be fully briefed to deal with consequent press enquiries. It might even be necessary to arrange a press briefing, but if this is the case, it would be held away from the party conference. Normally, the minister’s special adviser will arrange such a briefing. The announcement could be used in a departmental press release without referring to the party occasion.
There will be borderline cases. In these instances, the Director of Communications will be responsible for weighing up the matter and deciding whether publishing an official release might risk damaging the integrity of the department. Invariably, it would be better to suggest that such material be issued through the political channels.
Announcing new policies
Any announcement of a new policy must always respect the primacy of Parliament. If a minister announces a new policy outside the House, they risk being reprimanded by the Speaker.
The announcement must reach all MPs via an Answer to a Parliamentary Question or a Statement. An Answer or Statement must clearly state the timing of the announcement and copies of relevant material must be available in the Houses of Parliament at that time. Departmental parliamentary clerks are able to offer advice on this. In recess, a press notice can be used if it is copied to the relevant select committee chair and placed in the Library of the House.
In the sense that government communicators work directly with and for ministers who are politically motivated, government communications cannot be free of political content. But at all times it is essential to remember that, as civil servants, government communicators cannot join the political battle.
Government communicators regardless of discipline should do nothing that leaves ministers and the department open to criticism in this respect.
Ministers’ private interests
Journalists do not discriminate between official and private activity, which means that government communicators may find themselves dealing with enquiries about ministers’ holidays, families and other issues, possibly during official duties suchas press briefings on policy change. Normally these would be dealt with by the minister’s constituency office, but if the enquiry is about a minor matter, the Press Officecan deal with it, if the minister wishes.
In cases of doubt, the Director of Communications may want to consult the Permanent Secretary.
Ministers and government communicators
Working with ministers can be exciting and rewarding, and often leads to government communicators becoming highly motivated and involved. The nature of political office means that ministers will also take a close interest in the work of the press office. Like all civil servants, government communicators must maintain a professional distance from ministers and abide by the Civil Service Code at all times.
Communicators and other public resources are provided to help ministers explain the Government’s policies in a positive light. Government communicators or other resources cannot be used for image-making, which is the province of the party political machine. Ministers must be protected from accusations of using public resources for party political purposes, and they have a duty under the Ministerial Code to protect the integrity of civil servants.
Individually, communicators must behave in a way that will allow them to work for any future minister of any future government. They must also work effectively as part of a team that includes ministers, special advisers and other government communicators inside and outside their department.
It is in everyone’s best interests to build and maintain a good working relationship with all members of the team. And that relationship should be firmly grounded in the rules that set out what the different players can and cannot do, and what they should not be asked or persuaded to do.
Communicators’ methods of work vary between departments. However, a common factor is that a media officer’s work focuses on particular policy areas. Where these policy areas coincide precisely with a minister’s responsibilities, one media officer will work constantly and closely with that minister and their private office. Sometimes, this relationship is referred to casually as a ‘personal press officer’, but this term should not be used, because it implies duties that are beyond those of a civil servant. In a complex department, individual ministers’ responsibilities may overlap policy directorates, and thus overlap press desks. In that case, the minister will be served by more than one media officer.
The Director of Communications is responsible to the Permanent Secretary and the Executive Director for Government Communication for ensuring that government communicators understand the limits of their remit, providing any necessary support and advice.
Occasionally, a minister may ask for a dedicated media officer or even a specific member of staff. This is a matter that the Director of Communications may wish to discuss with the Permanent Secretary and the Minister responsible for the department. It might be necessary to explain why the best support for the presentation of the Secretary of State’s policies would be adversely affected by disrupting the Press Office teams.
Digital and social media
Digital technology has revolutionised the way in which people communicate and share information at local, national and international levels. Government communicators need to understand these changes so that they canoperate effectively in a dynamic media environment.
Social media guidance for civil servants
The Cabinet Office published new Social Media Guidance for Civil Servants (October 2014) The purpose of this guidance is to encourage and enable civil servants to use social and other digital media appropriately to enhance our work. It also makes clear our responsibilities to do so in accordance with the Civil Service Code.
This guidance covers the use of social media networks such as Twitter and Facebook and digital activity in general both in and out of work, e.g. browsing websites, downloading content or posting or publishing anything to the web.
The Guidance is based around five core principles of using social media:
- Common sense: Social media helps us work openly and connect with the citizens we serve – just remember to apply common sense!
- Adhere to the Code: Adhere to the Civil Service Code – apply the same standards online as are required offline.
- Doubts? If in doubt, don’t post it.
- Accuracy: Check the accuracy and sensitivity of what it is planned before pressing submit.
- Permanent: Remember once something is posted online it’s very difficult to remove it.
Points to note for government communicators The principles covering the use of social media by civil servants in both an official and personal capacity are the same as those that apply for any other media. Social media is a public forum and the same considerations apply as would, say, to speaking in public or writing something for publication either officially or in a personal capacity outside of work.
The following general guidance is intended to supplement the Social media guidance for civil servants and is particularly relevant to those involved primarily in a proactive communications role, using official departmental accounts e.g. departmentally administered Press Office and campaign accounts.
All government communication through social media and any other emerging digital channels must be consistent with the Civil Service Code and the established criteria for government communication that outwork:
- should be relevant to government responsibilities
- should be objective and explanatory, not biased or polemical
- should not be – or liable to be – misrepresented as being party political
- should be conducted in an economic and appropriate way, and should be able to justify the costs as expenditure of public funds.
When using official social media accounts such as Twitter, government communicators may use more informal language than for other channels. However, government communicators must remember that they are representing their department in this context and must apply the same high standards of accuracy as for all other official communications.
The character limitations and informality of much social media can pose new challenges for government communicators. For example, robust responses to media stories are part and parcel of press office work, but just as email can appear more aggressive than speech, press lines which may be acceptable in a conventional news piece may appear terse or even frivolous on Twitter. With this in mind, government communicators should observe the following checklist when running a departmental or policy account:
- Party Political – for original messages and retweets check that there is nothing party political within the body of the message, contained within links or in comments below a story. Official accounts must not be used for the further dissemination of messages from party political or otherwise partisan accounts
- Partisan – it is, of course, acceptable for a minister to hold strong opinions. 13 However, the department does not hold partisan opinions as an organisation. In carrying out their duties, government communicators are able to represent the views and opinions of ministers only as they relate to HMGovernment and department issues
- Parliament – at all times government communicators must respect the primacy of parliament
- Polemical – be sensitive to tone and guard against perceived attacks on particular interests, organisations or individuals
- Understanding – Don’t act on autopilot, ensure that you have read and fully understand messages before re tweeting
- Commercial – We encourage activity that promotes UK trade and economic growth, we support partnership working with business, the wider public and private sectors for guidance see GCS partnership guidance. We do not provide links that offer undue endorsement or may be perceived as offering unfair commercial advantage to third parties
- Confidential – at all times respect confidentiality, financial, legal and personal information. Do not discuss policy that has yet to be announced. Donot discuss ministerial movements
- Personal – Do not disclose personal information about minsters or about yourself. An informal tone of voice is often desirable within agreed boundaries, remember when using official accounts you are the voice of the department. Do not make personal comments about tweeters. Never respond to someone being abusive about you, the department or ministers
- Isolation – tweets always need to have links and context. Mediarebuttals should link to or at least cite the story you’re responding to or it will make no sense read in isolation.
It is often appropriate for named Civil Servants to run a work-related Twitter account particularly where a Civil Servant has some form of public profile or is using social media in a direct work related capacity – for example for open policy making. The above checklist applies to such accounts which must operate in accordance with the Civil Service Code, Social media guidance for civil servants and relevant local departmental guidance.
- People reply to and comment on government tweets: social media is precisely that and to be effective it must be considered a two way communication channel
- News and campaigns are only a small proportion of government’s social media use. Channels such as Twitter are used for customer contact and to support strategic policy and delivery priorities. At all times ensure that messages adhere to any agreed house style, are polite and helpful
- If in doubt, contact your line manager, Director of Communications or the GCS propriety team
The propriety challenges facing government communicators who work in publicity may be more subtle than for those working with ministers, but they are no less important. A substantial amount of public funds are spent on campaigns every year. It is essential that the cost of this paid publicity can be justified.
The Government has a duty to inform the public about legislation, policies, the services available to them and their rights and liabilities. All communications and marketing programmes must be considered in the light of propriety and value for money. Government communicators are advised to keep a record of the options considered and the rationale for the decision taken.
Paid publicity may be used where the Government believes that a direct approach to the public is needed to give more information about particular issues and policies. This type of publicity is wide ranging and may follow legislation which has given the public new entitlements or obligations. For example, it may be to encourage greater take-up of entitlements or to inform the public of actions that the Government proposes to take. Whatever the publicity is for, it needs to comply with Ofcom regulations on television and radio advertising.
All paid publicity work must be objective, factual, appropriate and intended to communicate government policies. It should not be, or appear to be, used for party political purposes. This applies to all aspects of the work, including content, context, treatment, style, tone and quality of presentation. The cost of any paid publicity must be justified and in proportion to the message being communicated.
The Government also has a responsibility and a right to use publicity to encourage behaviour that is in the public interest (for example crime prevention or road safety advertising). These campaigns may include a wide range of media channels and techniques to engage with audiences in a timely, appropriate and effective manner. Some of these simply provide factual information and practical advice, but others need to be more persuasive in content and presentation. Similar publicity is used to explain changes in the law that affect individuals or businesses, or the work of their professional advisers and intermediaries e.g. accountants, tax advisers, Citizens Advice Bureaux, etc.
There may be some sensitivity where the matters publicised are the product of controversial legislation or potentially controversial policies. However, the Government has a responsibility to inform the public of policy and legislative changes. Government communicators must ensure that the information is presented in an objective way that concentrates on informing the public about the content of legislation and how it affects them.
The Government may use a variety of media, including paid and unpaid publicity, to achieve its objectives.
The main forum for the presentation and discussion of government policies in Parliament. Major policy proposals are usually presented to Parliament as Command Papers, which can be sold to the public. Other proposals (digital or hard copy)on which comments are invited may be set out in less formal documents, which may be sold or free of charge. They are deposited in the libraries of the House of Lords and House of Commons at the time of publication and may be sent unsolicited to those with a known interest in the subject.
The public can also obtain information free of charge through GOV.UK, Press Offices, press notices or other briefings.
Papers, briefings and documents set out what the Government is doing and what it wants to achieve and may cover topics that are politically controversial. In this case, government communicators must ensure that the content and tone remain objective, impartial and within the rules of the Civil Service Code.
Paid publicity dos and don’ts
- Make sure that the topic is relevant to the Government’s responsibilities
- Make sure that the resources used are proportional to the objectives, affordable and represent good value for money. See ERG guidance for the approval of marketing expenditure
- Make sure that the channels and media are targeted effectively to make best use of resources
- Ensure that there are clear objectives and targets
- Set out clear success measures and ways in which they will be evaluated, especially where publicity aims to change the behaviour of individuals see GCS evaluation guidance for further detail
- Consider whether the objectives of any paid publicity can be achieved through existing government channels, e.g. parliamentary announcements, ministerial speeches or regular publications
- Consider whether communications objectives may be achieved through partnership with other departments, wider public and private sector organisations
- Encourage creativity to make the most of limited budgets • Stick to facts and avoid political bias
- Make sure that the communication is not used for party political purposes
- Keep a record of the options considered for the campaign and the rationale for the decision taken
- Observe parliamentary privilege, particularly when arranging publicity for White Papers or other, similar, documents
- Remember that not all legislative proposals are automatically approved by Parliament.
Distribution of unsolicited material
Distribution of unsolicited material must be carefully controlled. As a general rule, publicity touching on politically controversial issues should not reach members of the public unsolicited, except where the information clearly and directly affects their interests.
Justifying the costs of paid publicity
Spending public money on direct communication with the public can be one of the areas most sensitive to propriety issues.
It is right and proper for government to use public funds and resources for publicity and advertising to explain their policies and to inform the public of the government services available to them and of their rights and liabilities. However, these resources may not be used to support publicity for party political purposes.
This rule governs not only decisions about what may or may not be published, but also the content, style and distribution of what is published.
The tests on value for money must be applied, and the costs of paid publicity must be justified. The Cabinet Office in co-operation with and under delegated authority from HM Treasury administers the Efficiency and Reform Group ERG advertising, marketing and communications expenditure controls.
Under the ERG controls all expenditure proposals are scrutinised and expenditure is only permitted where:
- the Government has a legal duty to provide people with information, such as changes to legislation or public services
- marketing and advertising is critical to the effective running of the Government
- there is robust evidence that marketing and advertising delivers measurable outcomes that meet government objectives
Ofcom guidance on advertising
Political advertising is covered by the Communications Act 2003 and is regulated by the Office of Communications (Ofcom). Publicity campaign managers need to ensure that any paid-for information complies with the Act.
All publicity and campaign work must comply with the rules on propriety. In addition, publicity campaign managers should consider whether a paid-for information campaign contravenes the Communications Act 2003 in relation to political advertising. Consideration will be particularly relevant if the publicity manager is asked to produce a campaign which they feel breaches the conventions on propriety. Publicity managers should be aware that Ofcom has retained responsibility for the regulation of political advertising. In all other respects, the regulation of broadcast (in addition to non-broadcast) advertising passed to the Advertising Standards Authority (ASA) on 1 November 2004.
The Communications Act contains the following requirements in relation to the regulation of political advertising (which could include government information campaigns):
- Information campaigns should not be directed towards a political end or be of a political nature
- Information campaigns should not be partial
- Information campaigns should not promote (i.e. sell) a government policy
- Information campaigns should not influence public opinion on a matter which is, in the United Kingdom, a matter of public controversy.
Although not explicitly spelt out in the Act, the following further guidance is included regarding areas that could be problematic and therefore likely to be referred by the regulator to Ofcom:
- Information campaigns cannot be used to list the Government’s achievements
- Information campaigns cannot be used to provide balance to an argument or to put the record straight (e.g. in the case of biased or inaccurate media reporting)
- Approval for information campaigns may be withdrawn by the regulator (ASA) on the advice of Ofcom, if the campaign itself creates genuine public controversy.
Direct marketing is a term used to cover publicity methods that either involves a direct approach to an individual or seek a response directly from an individual.
The Government uses direct marketing when it needs to communicate directly with a specific target audience.
Direct marketing is a valuable, cost-effective, measurable media channel. However, when unsolicited, it can be regarded as intrusive and a nuisance. Inappropriate use in the past by commercial organisations has led to unsolicited material being labelled as junk mail or in the case of digital activity spam. This has created resistance among some recipients.
The appropriate use of direct marketing
Direct marketing techniques are a valuable part of the range of publicity media available to government, often offering cost-effective and measurable solutions to many publicity problems. However, some of the techniques are seen as intrusive, and some commercial users have sent out material to inappropriate recipients. Against this background, departments must take care if they are to obtain the benefits while avoiding criticism.
As a publicity medium, direct marketing is covered by the general guidance on government publicity. As that guidance makes clear, it is unlikely that the unsolicited distribution of material about policies that require – but have not obtained – parliamentary approval will be considered proper. In other cases, direct marketing may be appropriate.
Criteria for using direct marketing
Before embarking on a direct marketing initiative, departments must satisfy themselves that its use can be justified according to the following criteria:
- Is direct marketing appropriate for the campaign and is its use within the general guidance on propriety and value for money?
- Will the direct distribution of material be considered over-intrusive by recipients?
- Are suitable, reliable and accurate address lists available, and will their use be within the guidelines set by the Data Protection Registrar?
- Are other departments planning to approach the same audience over the period of the campaign? Are their opportunities to piggyback on existing mail shots and other departmental communications e.g. newsletters, notifications.
Further guidance the Direct Marketing DM Code
Now in its fourth edition, the Data and Marketing (DM) Code is the direct marketing industry’s most far-reaching set of best practice guidelines, incorporating the CAP Codes, PhonepayPlus Code of Practice, and FSA Principles for Businesses, as well as relevant legislation. The DM Code is upheld by the industry’s independent self-regulatory body, the Direct Marketing Commission.
Public relations consultancy
Government departments can use PR consultancies or agencies for some work, provided that certain criteria are met.
Using PR consultancies
As a general rule, PR consultancies:
- cannot represent ministers. Only civil servants who are directly controlled and answerable to ministers may explain ministers’ policies and deal with the media or others on their behalf
- cannot be used for any task that would be improper for a civil servant, such as opinion-forming in political support of ministers or image-building
- must not be used when internal resources are available for the task
There are some tasks for which a PR consultancy might properly be employed. However, the nature of the work should drive the selection of the consultancy, not the name of the PR firm. For example, financial PR agencies have been engaged on a consultancy basis in the privatisation of nationalised industry, following Parliament’s approval of the privatisation. Other PR agencies have been used for design and other presentational purposes, such as support for publicity campaigns of a strictly uncontentious nature.
The use of a PR consultancy or agency must meet all propriety, procurement and value-for-money criteria. Within these parameters, PR consultancies can be used to help deliver strictly non-contentious publicity programmes.
Criteria for appointing a PR consultancy
Before engaging a PR consultancy, departments must satisfy themselves that the appointment meets the following criteria:
- Is the task to be done relevant to government responsibilities?
- Could it be carried out by the Government’s own employees? If not, can the appointment of a consultancy be justified as a cost-effective way of reaching the target audience and provide the best value for money?
- Does the use of a consultancy, in this case, comply with the rules of propriety?
- Is the task discrete and closely defined?
- Are the supervisory arrangements adequate to keep the consultancy to its brief?
- Are the arrangements for the appointment thorough and clear?
If you are using an outside PR agency, it is important to have a clear and concise brief. The brief should cover background details and research, objectives and aims, target audiences, markets and resources. Make sure it also includes a timetable, budget, any particular constraints and considerations – and evaluation techniques.
If departments have any doubts about the propriety of engaging a PR consultant fora publicity task, they should seek the advice of their departmental Director of Communications, who may turn to the Executive Director for Government Communication as Head of Profession.
Commercial and legal sensitivity
The purpose of this section is to give guidance on legal and other restrictions that can affect the reporting of civil and criminal proceedings, and demonstrate how to deal with media enquiries about criminal cases.
- Be aware of the potential sensitivities affecting civil and criminal proceedings and commercially sensitive information
- Understand the restrictions that affect news reporting of such information
- Ensure that reporters are made aware of these restrictions, whenever necessary
- Always check with legal advisers or appropriate officials before using advice that has not been updated very recently.
Commercially sensitive information
There are legal constraints governing the release of some commercially sensitive information. The implications for communicators can be very important. The unsanctioned release of certain categories of information can result in legal action against the offender.
The two types of information that require such careful handling are ‘commercial in confidence’ and ‘market-sensitive’ information.
‘Commercial confidentiality’ usually relates to information surrounding the negotiation of contracts where price is the determining factor. Such information has a bearing on the fairness of contract negotiations and could be of advantage to others involved in negotiations.
‘Market sensitivity’ refers to information that could affect share prices or the value of sterling and/or exchange rates. Some examples of market-sensitive information are:
- Merger decisions – either referral to the Competition Commission or their clearance by the Secretary of State for Trade and Industry
- Decisions by the utility regulators
- The release of official statistics, such as the retail prices index.
In such cases, information is usually released at a time when markets are not trading or in such a way that ensures an orderly market. This is usually achieved through the use of the London Stock Exchange’s regulatory news service (known as TOPIC), which is disseminated digitally to the market. TOPIC ensures that announcements, particularly those that might affect market activity and the price of securities, are validated and communicated promptly. Where relevant, the London Stock Exchange and Department for Business, Innovation and Skills BIS Press Offices encourage communications officers to seek advice on this issue.
Some departments conduct criminal prosecutions. As well as presenting and dealing with queries about policies and performance, their communications officers will also need to deal with media interest in particular cases.
There are statutory and common-law restraints, as well as specific reporting restrictions – temporary or permanent – which the court may impose on particular cases.
Great care must be taken when providing background information or promoting the work of the organisation to ensure that no information is given that could prejudice proceedings, identify protected victims or witnesses, or otherwise give rise to contempt of court.
Journalists, editors and their legal advisers should be aware of the restrictions that govern the reporting of proceedings and it is their responsibility to ensure that published material is within the legal requirements that apply to that case. But government communicators representing prosecuting authorities have a particular responsibility to know and respect the rules and restrictions that apply, particularly when seeking to attract media interest or briefing on a background basis.
Government communicators operating within these rules should be fully trained and have ready access to advice about what can and cannot be reported about criminal proceedings.
The following is a summary of the main considerations and reporting restraints. A useful source of further information is the book: McNae’s Essential Law for Journalists.
Reporting restrictions under the Magistrates’ Courts Act – ‘subjudice’
Once legal proceedings are active – i.e. from arrest or issue of a warrant for arrest right through the magistrates’ court or Crown Court – reporting restrictions apply. Restrictions lapse after sentence, but if an appeal is lodged, legal proceedings are active again.
After arrest and charge, and before trial, the media may report only the following information:
- the name of the court and names of the magistrates
- the names, addresses and occupations of the parties and witnesses and ages of the accused and witnesses
- the offence(s), or a summary of them, with which the accused is charged
- the names of counsel and solicitors in the proceedings
- any decision to commit the accused, or any of the accused, to trial and any decision on the disposal of the case of those not committed
- the committal charges, or a summary of them
- the court to which the case is committed
- in cases where proceedings are adjourned, the date and place to which they are adjourned
- whether bail has been granted and any conditions (but not the reasons for its being opposed or refused)
- whether legal aid was granted.
At this stage, government communicators should release no more than this information to the media.
There are tighter restrictions on the reporting of cases involving juveniles and sexual offences. The rules are complex and, if necessary, you should consult reference books or a lawyer.
The accused can apply to have the reporting restrictions lifted. In this case, the magistrates are required to make an order to lift them. If there is more than one accused, they all have the opportunity to make representations before a decision is taken.
It is not advisable to release or confirm the name of a person who has been arrested until they have been charged. This is because that person may not be charged and may complain that they have been tried and convicted by the media. It is not appropriate to give the race, colour, religion or sexual orientation of the defendant unless it is directly relevant to the prosecution.
Contempt of court
During a trial, the media are entitled to publish or broadcast a fair and accurate report of legal proceedings held in public while proceedings are active (Section 4(1), Contempt of Court Act 1981). This means the evidence is given in open court. Often journalists who have not attended court will ask what happened. Be careful, as you will not know exactly what has been said unless you were present.
You must not give details of evidence that has not been given in open court or that has been excluded by the judge.
A judge or magistrate can impose reporting restrictions, particularly in cases involving children and young people, or if future proceedings may be prejudiced by reports of the current trial. Journalists are responsible for complying with these restrictions. The court has a responsibility to display Contempt Orders and Orders under the Children and Young Persons Act publicly, and inform journalists about them on request.
What happens if these reporting restrictions are breached?
If you give information that is subject to an Order restricting publication, and the media publish or broadcast it, proceedings for contempt may be brought against the publisher or broadcaster. You may find yourself mentioned by name in those proceedings and you and your department will be criticised and reported to the Attorney General. The defendant may argue that they cannot get a fair trial and the judge may agree and order an acquittal.
Pre-trial briefings by government officials or lawyers should be given only in exceptional circumstances, as there could be a risk of substantial prejudice to the trial. In addition, the defence may ask for material to be disclosed to them. You should seek advice from senior lawyers, and the consent of ministers or the head of the organisation. Any briefing should be limited to carefully selected journalists and should be strictly controlled. Details of evidence should not be given. Journalists must sign an undertaking not to use any of the background information until after the verdict. Briefings during the judge’s summing up, after all the evidence has been given, are usually preferable.
There is usually no problem with holding on-the-record briefings or press conferences or issuing statements or press releases after the verdict, but bear in mind that there may be an appeal.
Counsel’s opening speech, which summarises the prosecution case, maybe
released to the media on a ‘check against delivery’ basis, so that it can be published after the jury has heard it.
Reporting breaches or contempt of court
If you believe a report of a criminal case in which your department is involved maybe in contempt, or in breach of the restrictions in the magistrates’ court, or if you hear of any forthcoming report which may cause concern, you should obtain all the information you can and contact the lawyer involved as soon as possible. If the report has already appeared, the Crown’s lawyer will consider whether it should be drawn to the attention of the judge or magistrate. If the report has not yet been published or broadcast, an injunction may be sought. This is a matter for the law officers.
Guidance has been prepared by the Treasury Solicitor on the correct procedures for communications officers. It is advisable to keep a copy for out-of-hours duty.
Civil cases are usually heard by judges sitting without a jury, but there are some exceptions to this rule.
Civil jury trials seldom involve government departments directly. The exceptions are civil cases heard by a jury and relating to:
- actions against the police for alleged wrongful arrest, assault and malicious prosecution
The area of civil law in which departments are most likely to become involved is judicial review. Judicial review is the procedure by which decisions by the executive can be challenged on the grounds of irrationality, perversity, breach of natural justice and procedural impropriety. Such actions often name the relevant Secretary of State, which leads the media to request statements from the department.
Judicial reviews are frequently brought on behalf of individuals, with the support of pressure groups that are recognised by the courts as having the necessary legal standing to bring proceedings in matters concerning them, even though they are not directly affected by the decision under review.
Judicial reviews may themselves be the subject of review by a higher court (the House of Lords or the European Court of Justice), in which case there is little substantive comment that may be made by government spokespeople. Nevertheless, communicators would be well advised to keep a close eye on matters that may call for a response from the department.
The legislative environment
The day-to-day work of government communicators must be understood in the wider context of the legislative environment. There is a range of legislation relating to the work of government communicators and they should, at least, have awareness of data protection, Welsh language, disability discrimination, freedom of information and copyright.
The work of government communicators must:
- conform to the principles of the Data Protection Act
- deliver information in ways that meet the specific requirements of people with disabilities
- where appropriate and reasonably practicable, treat the Welsh language as equal with English, and not just as a translation
- be aware of the Freedom of Information Act
- for all commissioned material, consider seeking a formal assignment of copyright in favour of the Crown
- keep up to date on current legislative changes
The Data Protection Act 1984 gives legal rights to individuals in respect of personal data held about them by others. Departments should be aware of the Data Protection Act 1998, implemented in March 2000, which introduced significant changes to the 1984 Act. As well as covering automatically processed information, certain manual records are now covered by the Act. Individuals also have rights to prevent processing for purposes of direct marketing.
The Act applies to government departments in the same way as to any other data controller. Where necessary, departments are obliged to notify, i.e. register with, the Information Commissioner and to abide by the eight data protection principles. In summary, personal data should be:
- processed fairly and lawfully and not unless certain conditions are met
- obtained for specified and lawful purposes and not further processed in a manner incompatible with that purpose
- adequate, relevant and not excessive for the purpose
- accurate and, where necessary, kept up to date
- processed in accordance with the rights of the individual
- kept no longer than is necessary for the purpose
- protected by appropriate security
- not transferred without adequate protection
The Information Commissioner’s Office website provides comprehensive information on the Data Protection Act.
The Welsh Language Act 1993 applies to public bodies that provide a service to the public in Wales. Although government departments and Crown bodies are not bound by statute to adhere to the Act, the Government gave an undertaking that they would do so. This applies when the service is provided to people in Wales, regardless of the location of the supplier. The principle of the Act is that: ‘In Wales the English and Welsh languages should be treated on the basis of equality.’ Welsh should not be treated just as a translation, if it is appropriate and reasonably practicable for it to be treated with equality.
Government departments, Crown bodies and those public bodies covered by the Act are under an obligation to draw up a scheme for approval by the Welsh Language Board (established under the Act). Schemes should include measures that:
- are descriptions of the services available in Wales
- are practical arrangements
- pPut in place an implementation and monitoring framework
- include an implementation timetable
- are more than policy statements
You are advised to check whether your department’s scheme has been submitted and approved. If this is the case, you must ensure compliance.
The Disability Discrimination Act 1995 gives disabled people rights in the areas of employment, receiving goods and services, and property. The Act affects anyone providing goods, facilities or services to the public, whether paid for or free. Communicators must consider how information can be delivered in accessible ways for people with disabilities. These could include, for example, large print, Braille or audio versions of literature and/or minicom services on the telephone.
Conferences, seminars and launches should include special provision for those with disabilities, if it is reasonable to do so. More information on the Disability Discrimination Act can be found on GOV.UK.
Freedom of information
The Freedom of Information Act 2000 came fully into force on 1 January 2005. The Act creates a statutory right of access to information on regional and local public bodies, including central and local government, the health and education sectors, the armed forces and the police. The Act allows any individual, anywhere, the right to have access to information held in any form by a public authority, subject to 23 exemptions to protect information that should properly be kept confidential. The right of access is fully retrospective.
Decisions on disclosure under the Act should be based on a presumption of openness. The majority of exemptions are subject to a public interest test (where the public authority may only use the exemption if the public interest in withholding the information outweighs the public interest in disclosure).
More information about the Act can be found on the Office of the Information Commissioner’s website.
First copyright in publicity and information work originated outside government would usually be owned by the originator or their employer. The fact that a department may have commissioned and paid for the work to be produced does not automatically give the department any rights of ownership to the material. Any reproduction of the material by the department requires the consent of the originator.
Departments that commission material should consider seeking a formal assignment of copyright in favour of the Crown. This gives the department freedom to allow other contractors to use the material without payment to the original designer or writer. It also gives the department the power to prevent misuse of the material by the contractor or third parties.
In most cases, the department will wish to waive copyright on the material and allow the public free use of it – but it cannot do this unless it owns the copyright. On rarer occasions, when commercial exploitation of the material is possible, copyright allows the department to benefit, rather than the contractor.
The National Archives has produced guidance on copyright in works commissioned by the Crown.
Government departments have responsibility for ensuring that the conventions on propriety are observed and that value for money is being achieved. The principal source of advice to ministers and heads of department is the departmental Director of Communications.
Officials planning publicity or advertising campaigns should consult their departmental Director of Communications at the earliest stage and Heads of Department should ensure that the Director of Communications and the finance division have sufficient opportunity to advise on proposals for paid publicity. All proposals for paid activity are subject to scrutiny under the Cabinet Office ERG administered expenditure controls and expenditure is only permitted where:
- The Government has a legal duty to provide people with information, such as changes to legislation or public services
- Marketing and advertising is critical to the effective running of the Government
- There is robust evidence that marketing and advertising delivers measurable outcomes that meet government objectives.
Further guidance on the ERG approvals process is available on the GCS website. No contractual arrangements with third party suppliers can be entered into without prior approval under the terms of the controls.
If the departmental arrangements work well, the need for reference to central advice on propriety should be very limited. Central advice should be sought in the following three, distinct circumstances:
- If a publicity proposal falls into a category where central reference is mandatory, as is at present the case for paid publicity in advance of legislative approval
- If a proposal is novel or contentious in expenditure terms, in which case early reference to the Cabinet Office team who administer the ERG controls is advised
- Where a minister, Head of Department or Director of Communications wants a second opinion on the compatibility of a proposal with the current central guidance.
Departments may wish to seek professional advice on the most appropriate and effective ways of meeting their publicity objectives. Directors of Communications can provide this advice both directly and in consultation with the wide range of private sector specialists that they commission and manage. Directors of Communications regularly exchange advice and experience with their opposite numbers in other government departments and, can consult the GCS propriety team and the Executive Director for Government Communication on matters of communications propriety, if required. They will advise if the matter needs further consideration by the Propriety and Ethics Team in the Cabinet Office, or by the Head of the Home Civil Service. Government publicity for proposals which are, or may become, the subject of legislation in Parliament remains a particularly sensitive area. Until such measures have become law, any government publicity must neither assume nor anticipate parliamentary approval. Ministers should make sure that all proposals for paid publicity (including, for example, leaflets) which refer to legislation in advance of parliamentary approval, together with the proposed distribution of the material, are considered by the Head of the Home Civil Service and copied to the Minister for the Cabinet Office.
Paid publicity is used extensively by the Government to recruit people in various front line public services. This is generally non-controversial, but the cost must still be justified, proposals for paid advertising activity are subject to ERG approval.
Value for money
As with any other kind of public expenditure, responsibility for ensuring the economy, efficiency and effectiveness of a publicity proposal lies with departments.
The Accounting Officer’s general value-for-money responsibility is, if anything, more acute in this area because of the high visibility of publicity expenditure and the potential intangibility of results. A rigorous examination of all proposals for publicity expenditure, starting from first principles, is therefore essential.
In addition, all proposals for paid activity are subject to scrutiny under the Cabinet Office ERG administered expenditure controls.
Central government departments, unlike local authorities, do not rely on any specific statutory authority to spend money on advertising and publicity. Their use of publicity is covered by the principle that the Crown – and ministers of the Crown as its agents – can do anything an ordinary person can do, provided that there is no statute to the contrary and Parliament has voted the money. The safeguard is, of course, the Government’s accountability to Parliament for all that it does and spends.
Government publicity conventions
The communication should be relevant to government responsibilities
The specific matters dealt with by government publicity should be ones in which the Government has direct and substantial responsibilities. It is proper and necessary that the Government should explain and justify its policies and decisions, and, when necessary, inform, advise, alert or warn the public.
The communication should be objective and explanatory, not biased or polemical
The treatment of information should be as objective as possible. While such information will acknowledge the part played by individual ministers of the Government, personalisation of issues or personal image-making should be avoided.
Government information or publicity activities should always be directed at informing the public, even where it also has the objective of influencing the behaviour of individuals or particular groups (for example, ‘Don’t drink and drive’ and other health and safety and consumer protection messages).
The communication should not be – or liable to be – misrepresented as being party political
It is proper to present and describe the policies of a minister, and to put forward the minister’s justification in defence of them. This may have the effect of advancing the aims of the political party in government.
However, it is not proper to justify or defend those policies in party political terms, to use political slogans, expressly to advocate policies as those of a particular political party or directly attack policies and opinions of opposition parties and groups (though it may be necessary to respond to them in specific terms).
It is possible that a well-founded publicity campaign can create political credit for the party in government. But this must not be the primary or a significant purpose of government information or publicity activities paid for from public funds.
The communication should be conducted in an economic and appropriate way, and should be able to justify the costs as expenditure of public funds
The Government is accountable to Parliament for the use it makes of Civil Service staff or other public resources or expenditure. The Accounting Officer for the vote concerned has a particular responsibility to the Public Accounts Committee for the propriety of using public resources for these purposes, as well as for the economy, efficiency and effectiveness of their use. The resources employed should be proportional to the objectives or policy of the programme involved and justifiable on value-for-money grounds.
Government publicity campaigns (especially advertising campaigns) have to compete for public attention with other publicity. To be effective, they need to be professionally presented in such a way as to register a clear message with the public. They should also impress upon the public that the Government is taking pains over the presentation of the facts and its message.
Poor presentation can be as much a waste of public funds as the extravagant use of resources. It would, however, be counterproductive if the level of spending on a publicity campaign impeded the communication of the message it was intended to convey, by itself becoming a controversial issue.
Email the GCS propriety team: email@example.com.