21st April 2021
Dear Kate Josephs
Council information leaflet to households: change of governance referendum
We consider that the council has put out inaccurate and misleading information in relation to Sheffield’s governance referendum in its leaflet delivered to Sheffield households. We laid this out in our letter to you of 9th April, and reiterated in the follow-up meeting with James Henderson on 12th April.
Information that is inaccurate and/or misleading is clearly unfair (and in contravention of para 4(7) of The Local Authorities (Conduct of Referendums) (England) Regulations 2012. The information in the household leaflet does not enable voters to understand the particular referendum choice they are empowered to make, nor to enable them to assess the different choices available to them in the referendum.
We therefore require the council to correct the inaccurate and misleading information by writing to, or otherwise communicating with, the electorate, within 7-10 days to correct the situation.
We understand that your opposition to this is partly your interpretation that the council is prohibited from publishing any further information in the 28 days before the referendum and that the Referendum Regulations only allow the council to correct third party misinformation in this period.
We find the position taken by the council that it is not able to correct its own misinformation is one where there is clear maladministration and is not a decision that any local authority could legitimately make.
Bearing in mind the referendum is on 6th May, we think there is a clear case of maladministration if the council does not correct the record within the next 7-10 days.
Our position, therefore, is that we would like to raise a complaint with the Local Government Ombudsman of maladministration against the council in refusing to correct inaccurate information it has put out to the electorate in preparation for the referendum.
Our position is that there is a clear general authority or power with the council to be able to correct that misinformation, especially as it has the explicit right under the [Regulations] to correct misinformation put out by third parties.
Further, our position is that the only defence the council could have against a successful claim of maladministration is if it has a written QC’s opinion confirming that the council has no power within 28 days of the referendum to correct unfair or inaccurate information that it has put out in relation to the referendum.
Otherwise, the Ombudsman should make a finding of maladministration
Woll Newall (Co-Chair) and Ruth Hubbard
(on behalf of It’s Our City! Coordinating Group)
The problems with the council governance leaflet to households: misleading and inaccurate
- Under the ‘Leader and Cabinet’ model the second of four bullets reads “Other councillors from different political parties look at proposals and suggest changes before the Cabinet decides.” This is not true – other councillors from different political parties explicitly do not look at proposals and suggest changes before the Cabinet decides.
Under the fourth bullet the council consolidates the false impression: “This is the model used to run the Council now”, but then it adds, “but with the agreed addition of a new committee to review decisions before they are made by Cabinet.”
Voters are supposed to:
(i) read the second bullet saying that councillors from different political parties look at proposals and can suggest changes before Cabinet decisions
(ii) be told this is the way the council runs now, but then – somehow –
(iii) understand, in fact, that the fourth bullet phrase “agreed addition of a new committee” actually refers back to the second bullet, and refers to one and the same thing.
(iv) Further, readers are also meant to understand the “new committee” is not, in fact, in place yet, but refers to something in the future.
No reasonable reader could be expected to perform such mental gymnastics and to understand what is being said here. The very clear impression given is that councillors from different political parties look at proposals and suggest changes before the Cabinet decides – and that this is what happens now. This is not what happens now – councillors from other parties are wholly excluded, and sometimes even only finding out in the local press about Cabinet decisions that have been made. This also applies to backbench (not in the Cabinet) ruling group councillors where there are examples of decisions that have been made concerning certain wards that local ward councillors have not known anything about.
In fact, the Leader and Cabinet model is governance that places almost all decision-making power in the hands of a Leader (plus a small group of Cabinet members chosen by that Leader). These decisions can be reviewed by other councillors in scrutiny committees only after they have been made (and under certain conditions).
- The choice that voters are empowered to make in the governance referendum is a specific and limited one. The choice allowed is between governance models, and does not include the right to decide the way these models are implemented. The choice is between
(i) the Leader and Cabinet model (also known as the ‘strong leader’ model or an ‘executive-led’ model) where nearly all decision-making power is held by the Leader (with his or her Cabinet), OR
(ii) the committee model (also known as ‘modern committee’ governance) where all councillors play a role in decision-making (via committees that they sit on) and where, ultimately, full council is the sovereign decision-making body.
Voters are not empowered to make decisions in the referendum about the (multiple) different ways that both models can operate in practice, only between the overall governance models themselves.
However the council leaflet says “On 6 May you can decide between:…” and then it provides information on each model that goes beyond the choice available to voters providing details (albeit misleading, as in the case above) about how the models work. This is not at all the choice available to voters and is inaccurate in portraying the choice that voters can make.
So, for example, voters that vote for ‘Leader and Cabinet’ will have been wrongly told that they have then chosen a system where decisions are always going to be reviewed (in advance).
The comparator is the London Borough of Newham Council where they also have a referendum and in their information it is very clear that voters have a choice on the alternative governance model they can vote for – but this is separate from the proposals about how that model is going to be put into practice.
The LGA advice given to the council
There are legal requirements for the council to produce fair information on the referendum for voters. Following representations by It’s Our City! (in both 2020 and 2021) about the council website information on the referendum, the council eventually sought advice from the Local Government Association (LGA). This advice recommended extensive revisions of the website information almost wholly in line with It’s Our City! representations, and the council said it accepted the LGA advice in full.
The council also sought advice from the LGA on its draft leaflet that it intended to send to Sheffield households – It’s Our City! offered to look at this draft to assist in the production of fair information, but the draft was not provided (although in a meeting in 2020 it was possible to glance at elements of the draft leaflet in front of the officer).
The LGA advice on the leaflet advises some minor amendments to the specific wording. This is placed in the context of their general advice to avoid the confusion and intermingling (conflation) of the models, their major features, and proposals for change by “separating the explanation of the two different governance models from what are the, agreed, proposals for changes to the current model”. They say their earlier general advice [to separate these] applies – however, in the leaflet the separation is not made.
Had this separation – of the governance models from how they (might) operate and from any proposals for change (agreed or otherwise) – occurred on the leaflet, it is possible that both problems 1) and 2) might have been avoided.