Localism Bill

Memorandum submitted by The Newspaper Society (L 137)

Localism Bill

1. The Newspaper Society represents the regional media, whose companies publish around 1200 local and regional newspaper titles, 1500 associated websites, 600 niche and ultra local publications and run 43 radio stations and two television channels.

2. The Localism Bill’s access to information framework is of editorial importance to the regional press. Its reporting of local government is valued by its readers

http://ww w .newspapersoc.org.uk/blog/index.php/2010/05/10/council-reporting-valued-by-85-per-cent-of-local-newspaper-readers/ http://ww w .newspapersoc.org.uk/blog/index.php/2010/05/10/council-reporting-valued-by-85-per-cent-of-local-newspaper-readers/

The regional and local press has always considered that the public’s and media’s statutory rights of access to local government information and decision-taking are fundamental to their work in holding local government to account. Chief amongst these are the public’s right to attend local authority meetings and to inspect their agenda (and in the case of the press, to be sent it in advance) together with supporting documentation, background papers and minutes. You may be aware of the regional press’s strong and successful campaign, in conjunction with the then Opposition and Liberal Democrats, against the Labour Government’s attempt to take away these rights of press and public under the Local Government Act 1972, precisely in order to allow ‘new style’ cabinet councils to discuss and take decisions behind closed doors, with only retrospective review by ‘oversight and scrutiny committees’. After amendment of the Bill during its passage through Parliament, the NS was invited to become a member of the Ministerial Advisory Group on implementation of the new legislation to ensure effective operation of the rights to advance documentation and to attend meetings where key decisions were to be taken.

3. We obviously maintain our inter est in this area as our members fee l that they can encounter a culture of secrecy and information management.

http://www.newspapersoc . org.uk/blog/index.php/2010/05/10/local-newspaper-editors-say-public-bodies-becoming-more-secretive/ http://www.newspapersoc . org.uk/blog/index.php/2010/05/10/local-newspaper-editors-say-public-bodies-becoming-more-secretive/

Thus great care has still to be taken in framing primary and secondary legislation, in order to prevent the possibility of exploitation of any powers which allow exclusion of the public and press from access to the full documentation, debate and decision-taking of local government, whatever the governance model, denying full information on issues of importance to the local electorate, including expenditure of public funds. The NS is therefore very interested in the Localism Bill and its potential impact upon this area.

4. We note the detailed provisions on access to information and meetings under Clause 10 and Schedule 2 of the Localism Bill. We appreciate the care that has been taken to embed a legislative framework and legislative powers on information rights alongside the creation of new arrangements on governance for English local authorities to which they should apply. Yet these powers are so wide that they could still be used to entrench secrecy, rather than extend openness. We would hope that they would not be used in this way by any fu t ure government. But there do need to be safeguards to ensure that this does not happen.

5. These are some examples of such powers under Clause 10, Schedule 2 of the Localism Bill and the new Part 1A of the Local Government Act 2000 to be thereby introduced.

6. Under section 9B, the Secretary of State has the power to make regulations to prescribe governance arrangements, other than a committee or executive system. He may, but need not, apply the provisions on access to information and meetings or a modified form of them. If he is asked to make regulations to prescribe local authorities’ suggested governance arrangements, we are pleased that local authorities are obliged to consider openness. However, this could be a safeguard too easily satisfied - the local authority simply has to consider that its operation of the arrangements which it proposes are likely to ensure that the decisions of the authority are taken in an efficient, transparent and accountable way. The authority could argue that this condition is satisfied without making public access arrangements equivalent to the current statutory requirements on access to meetings, agenda and documents which do enable the public to be fully informed of the matter and the meeting at which it is to be discussed in advance of a meeting and prior to the decision being taken. Nor does the strict wording of the Bill require the local authority to ensure that the public have access to other information about the work and activities of the local authority, o ther than the decisions taken. And, of course, there may even be arguments as what might or might not constitute a decision for the purposes of the Bill, which might also hinder its transparency and accountability objectives in practice.

7. Under sections 9G and 9GA of the new Part 1A, local authority executive and their committees are given complete discretion to choose whether they meet in public or not, in the absence of regulations made by the Secretary of State. They could lawfully choose always to meet behind closed doors. If regulations are made, the Bill also gives the Secretary of State complete discretion as to how he uses that power - he can specify that meetings must be held in private rather than public; he can choose to apply provisions of Part 5A of the Local Government Act 1972 about access to agenda, documents and minutes, or choose to modify them (conferring reduced as well as enhanced rights); he can choose to make other provision for access to information and meetings – or not make any.

8. We do hope that robust regulations predicated upon openness will in fact be made, backed by the sanctions permitted under 9G4(j) to enforce public rights of access to information. Indeed, the NS is somewhat surprised that the DCLG’s consultation on revision of the Accounts and Audit Regulations 2003 is proposing both the removal of such sanctions for local authorities’ failure to comply with the public’s inspection rights of all documents relating to local authority accounts, including contracts, and the removal of mandatory local newspaper publication of notice of the inspection period in respect of smaller relevant public bodies. These proposals appear to run counter to the Secretary of State’s encouragement of both the disclosure of precisely such information by local authorities and its armchair audit by their electors.

9. The Localism Bill’s provisions on establishment of oversight and scrutiny committees to hold the executive to account could lead to the committee becoming valuable additions to public access rights in maintaining democratic scrutiny. However, they cannot ever be substitutes for the press and public’s rights to attend the actual local government meetings at which decisions are discussed and taken, or their rights to agenda and agenda papers (in advance in the case of the press) and to the background documents containing the information necessary to making of the decisions. Retrospective analysis or access to records of decisions, or minutes or other such information are not sufficient substitutes, even if oversight and scrutiny committees are established and open to the press and public.

10. Furthermore, we are concerned that under the Localism Bill, the oversight and scrutiny committees themselves could apparently be barred from access to the full information, even though it might have been crucial to the decision under examination or vital in understanding its future effect and implications.

11. Our members feel that local authorities do exploit the exceptions to public rights access to meetings and information, enabling the exclusion of the public and press from meetings and the omission of information (other than a summary) from documents open to public inspection, where such meetings or documents may include exempt or confidential information, as defined by the Local Government Act 1972. The local media appreciate that there is a genuine need for such exceptions and their use can be genuinely justified. Yet, they feel that all too often the discretion in respect of exempt categories is automatically exercised in favour of secrecy, (see above survey) , on occasions there might even be a suspicion that confidential information might have been added to ensure secrecy, while the statutory requirement to include summaries of omitted material to make m inutes etc intelligible are of course helpful, but still an unsatisfactory substitute for full information. Yet the Localism Bill would allow the oversight and scrutiny committees to be denied access to such information themselves. Moreover the Bill allows the committees to deny it to other councils, committees and councillors, as well as press and public, even if it formed part of their recommendations to local authorities or the latters’ response to them. If these provisions are open to any abuse under the new regime and in practice are used to enable relevant information to be withheld from affected elected bodies, electorate and their specialist scrutineers, then it could make something of a mockery of the committees’ name, purpose and work, which would hardly be conducive to local government transparency, accountability or democracy.

12. The relevant provisions of the Bill are set out in section 9FG and following sections of the proposed new Part1A to the Local Government Act 2000 (Localism Bill, clause 10, schedule 2). These provide that any confidential and relevant exempt information, as defined by the Local Government Act 2000 and National Health Act 2006 where relevant, must or may be excluded respectively from documents constituting any overview and scrutiny committee’s report, its recommendations to the local authority and the local authority’s response which is published. Such omissions may also be made if such documents are given by that committee or local authority, to a member of a local authority or to a relevant partner authority.

13. The Secretary of State is given power to make regulations imposing the same restrictions, with or without modification, in respect of provision or publication of reports, recommendations, responses of oversight and scrutiny committees of district councils, their county councils, executives and partner authorities (local improvement areas). Regulations can be made about publication of requests, information and responses in relation to review of flood risk and coastal erosion management by an overview and scrutiny committee.

14. The Secretary of State also has powers to prevent disclosure of information by partner authorities and associated district authorities to the relevant oversight and scrutiny committees and district council committees.

15. The NS has asked the Government for assurances as to how it intends to prevent such powers being used to impose unnecessary restrictions upon public access to local government information.

1 6 . These areas are of great interest and importance to the regional media and its audience. The NS has asked the Government to outline whether it intends to draw up regulations affecting press and public access to local government information under the powers conferred by the Localism Bill; whether those will be framed to ensure the greatest possible openness, improving upon the current provisions of the Local Government Act 1972 as amended and other relevant legislation rather than reducing public access to information and meetings rights; what the timetable for such secondary legislation would be; and, most importantly of all, whether the Government will consult upon both the content and detailed dra fting of any such legislation. It would be very helpful if the Government ensured that there was advance consultation of interested parties, including the NS and other media organisations, whose members rely upon their statutory rights for day to day coverage of local government, in addition to local investigative reporting.

February 2011