First Report of Session 2014-15 - Statutory Instruments Joint Committee Contents

Appendix 5

S.I. 2014: memorandum from the Department for Communities and Local Government

Openness of Local Government Bodies Regulations 2014 (Draft S.I.)

1. The Joint Committee on Statutory Instruments has asked the Department for Communities and Local Government to submit a memorandum to explain the justification for the provision that would bring the Regulations into force on the day after the day on which they are made, having regard in particular to—

(a)  the significant new obligations imposed on local government bodies (including parish and town councils) by the draft Regulations, and

(b)  the fact that regulation 10 would create new criminal offences.

2. The Department's explanatory memorandum to the Regulations explained the circumstances of the Regulations and that given these circumstances the Government considers it would be appropriate for the Regulations to come into force on the day after the day on which they are made.

3. In short, in the Government's view, there is both a pressing need for the Regulations and the obligations imposed by the Regulations are neither unexpected nor would impose any significant new administrative or organisational burdens on the local government bodies concerned, including parish and town councils. It is already the case that meetings of council Executives (and their sub-committees) have to follow similar rules as a consequence of Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2012.

4. There is a pressing need because whilst the great majority of councils already allow persons attending an open meeting to use social and digital media for reporting the meeting, there are examples where attempts have been made to prevent such reporting to the detriment of effective local democracy and of ensuring full transparency and accountability in step with the digital world of today. For example, we understand that on the 24 April 2014 police officers were called to effect the removal from a Wigan council meeting of a councillor on the grounds that he was using social media during the meeting. It is reported that the leader of the council, Lord Peter Smith, stated that "this has been the most atrocious meeting I have seen". Another example is that, we understand, on 16 January 2014 the police were called to a Seaford town council meeting because a person was filming the meeting; they asked to speak to the person, who refused to leave the meeting, and the final upshot was that the meeting was abandoned.

5. Such situations are clearly indefensible and are deeply damaging to public confidence in our democratic processes. The Regulations, if approved by Parliament and made, will put beyond doubt the legality of using social and digital media, including filming, to report any open meeting of a local government body. The Regulations can therefore be confidently expected to put an end to any incidents such as those described above arising in future. The need for the Regulations to be in force at the earliest opportunity is therefore, in the Government's view, unarguable.

6. The Government is also conscious that it would not be appropriate to bring Regulations into force so early that those to which they apply could not reasonably be expected to comply. In the case of these Regulations the Government is clear that compliance, whether by large councils with extensive administrative resources, or by small bodies such as parish or town councils with perhaps a single part-time officer, do not require any significant preparation. Council meetings are already public meetings and members of the press already attend to report meetings. All that is required is that once the Regulations are in force, particular behaviours by officers and members need to be adopted, if they have not already been adopted, as in fact they have in the great majority of cases. These behaviours are to allow the use of social and digital media for reporting meetings by those attending the meetings, and for officers to record in writing (the record then to be publicly available) certain decisions which they are taking, where these decisions have been delegated to them by the council or other local government body.

7. The criminal offence, which closely mirrors existing offences provided for in the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2012, is limited to making it an offence for a person having custody of the written record of decisions and background papers intentionally obstructing a member of the public from being able to inspect these records. It is not related to the issue of social and digital media. An offence therefore can be committed only by the person concerned adopting an intentional and proactive course of action, that course being to obstruct the inspection of the document concerned.

8. The Government therefore considers that all local government bodies would be in a position now to comply with the Regulations' requirements, were these to now be brought into force. Ministers have previously called for all councils to adopt these provisions and open up their meetings to digital media. Furthermore, it is not the case that these requirements, if and when they are brought into force on the day after the day on which Regulations were to be made, would be unexpected. The Government's proposals for these Regulations are widely known in the local government sector, and the Department will ensure that any Parliamentary approval of the draft Regulations is widely and rapidly communicated across the local government sector, as well as likewise communicating any subsequent coming into force date. The Government will be providing a plain English guide for councils and members of the public.

9. In conclusion therefore the Government considers that it is practicable for the Regulations to be brought into force on the day after the day on which they are made, and given, for the reasons described above, the need for the Regulations to come into force at the earliest opportunity, it is thus the Government's view that the Regulations should come into force on that day.

10. We would note that the enabling power to issue these regulations was debated during the Local Audit and Accountability Bill, with cross-party support. The Shadow Secretary of State for Communities and Local Government, Rt Hon Hilary Benn MP, stated: "We will therefore support… the proposal that councils in England should allow the recording and videoing of council and committee meetings. In this day and age, big changes in technology make recording and videoing readily possible, and I cannot see the difference between sitting in a meeting, listening and writing down what is being said, or—for those who have shorthand—taking a verbatim record, and making one's own recording" (Hansard, 28 October 2013, Column 690)

11. The Local Government Minister, Brandon Lewis MP, recently explained to the Commons the rationale and public benefit from these new regulations. He said:

"Council meetings are public meetings which already can be reported by the press. We are merely reforming the access rules to allow the press and public to report such meetings through digital and social media. It will help bring greater awareness of the good work that councillors do for their local communities.

"I would observe that the cause of openness in council meetings was championed by Margaret Thatcher, in her maiden speech to this House. As a backbencher, she successfully introduced a Private Members' Bill—the Public Bodies (Admission to Meetings) Act 1960—to open up meetings to the press and public, spurred on by the practice of the print unions getting Labour councillors to kick out journalists from council meetings who had crossed picket lines.

"While that the 1960 Act did not expressly permit filming, I note from perusing the Bill Committee Hansard that Mrs Thatcher was firmly of the view that broadcast journalists should have the same rights as other members of the press and public (Official Report, Standing Committee C, 13 April 1960). We are updating those analogue rights for a digital age." (Hansard, 8 April 2014, Column 222W)

Department for Communities and Local Government

8 May 2014

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