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Posted by: John Brace | 1st June 2014

So what’s been happening with the filming public meetings law (Openness of Local Government Bodies Regulations 2014)?

Labour councillors at a public meeting of Wirral Council's Coordinating Committee vote to consult on closing Lyndale School (27th February 2014) (an example of the kind of meeting the regulations will cover)

Labour councillors at a public meeting of Wirral Council’s Coordinating Committee vote to consult on closing Lyndale School (27th February 2014) (an example of the kind of meeting the regulations will cover)

So what’s been happening with the filming public meetings law (Openness of Local Government Bodies Regulations 2014)?

                           

I’ve written before about the law going through Parliament about filming public meetings. Sadly when it comes to the House of Commons and House of Lords nothing seems to happen quickly! Here’s a quick recap of what’s happened so far. The Local Audit and Accountability Act 2014 became law on the 30th January 2014. Sadly this issue wasn’t dealt with through primary legislation, but s. 40 of the Local Audit and Accountability Act 2014 gives the Secretary of State (Rt Hon Eric Pickles MP) the power to make regulations about the filming issue. S. 49(2) of the Local Audit and Accountability Act 2014 meant that the power given to the Secretary of State to lay regulations came into effect two months after the Local Audit and Accountability Act 2014 became law (30th March 2014).

Shortly after this date, on the 3rd April the Rt Hon Eric Pickles MP (you will need to scroll down to the section marked Appendix for the right point) laid the draft Openness of Local Government Bodies Regulations along with a draft Explanatory Memorandum.

S. 43(3) of the Local Audit and Accountability Act required that such regulations “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”. So the draft Openness of Local Government Bodies Regulations 2014 don’t have the force of law until a motion to approve them has happened in the House of Commons and the House of Lords.

Standing orders mean that the Joint Committee on Statutory Instruments (which comprises both Members of the House of Commons and the House of Lords) must assess every statutory instrument to check that the draft regulations are in line with the power under an Act of Parliament granted to the Minister to make them. Since the draft regulations were laid, the Joint Committee on Statutory Instruments has met twice.

At its meeting on 7th May 2014 it considered regulations such as the “European Union (Definition of Treaties) (Convention on International Interests in Mobile Equipment and Protocol thereto on matters specific to Aircraft Equipment) Order 2014”, “Licensing Act 2003 (FIFA World Cup Licensing Hours) Order 2014”, “Submarine Pipe-lines (Electricity Generating Stations) (Revocation) Regulations 2014”, “Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) (Amendment) (England) Regulations 2014”, “Central African Republic (European Union Financial Sanctions) Regulations 2014” and “Protection of Wrecks (Designation) (England) Order 2014” but sadly not the draft Openness of Local Government Bodies Regulations 2014.

At the Joint Committee on Statutory Instruments’ meeting on the 14th May 2014 it considered regulations such as the “Annual Tax on Enveloped Dwellings (Indexation of Annual Chargeable Amounts) Order 2014”, “African Legal Support Facility (Legal Capacities) Order 2014”, “Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014”, “Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2014”, “Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) (Amendment) Regulations 2014”, “Marine Licensing (Application Fees) (Amendment) Regulations 2014”, “Plant Health (England) (Amendment) Order 2014” but again not the draft Openness of Local Government Bodies Regulations 2014.

Sadly the House of Lords can’t approve the draft Openness of Local Government Bodies Regulations 2014 before the Joint Committee on Statutory Instruments have met and reported on it. Since the draft regulations the Department for Communities and Local Government have produced a draft Councils and other local bodies – filming and reporting their meetings, knowing what they do: your rights (A guide for local people) guide which the Department for Communities and Local Government asked for comments on by a date shortly after the local election results being announced last month.

On the 7th May the House of Commons agreed that the following MPs (Adam Afriyie (Conservative, Windsor), Mike Crockart (Lib Dem, Edinburgh West), Mr Jim Cunningham (Labour, Coventry South), Nick de Bois (Conservative, Enfield North), Jim Fitzpatrick (Labour, Poplar and Limehouse), Robert Flello (Labour, Stoke-on-Trent), Mike Freer (Conservative, Finchley & Golders Green), John Healey (Labour, Wentworth & Dearne), Kate Hoey (Labour, Vauxhall), Susan Elan Jones (Labour, Clwyd South), Brandon Lewis (Conservative, Great Yarmouth), Robert Neill (Conservative, Bromley and Chislehurst), Claire Perry (Conservative, Devizes), Andy Sawford (Labour, Corby), David Simpson (Democratic Unionist, Upper Bann), Mrs Caroline Spelman (Conservative, Meriden), Craig Whittaker (Conservative, Calder Valley) and Simon Wright (Lib Dem, Norwich South) make up the Sixth Delegated Legislation Committee (Draft Openness of Local Government Bodies Regulations 2014).

On the 12th May the makeup of the Sixth Delegated Legislation Committee (Draft Openness of Local Government Bodies Regulations 2014) was changed slightly. Simon Wright (Lib Dem, Norwich South) was discharged from membership of the committee. When the Sixth Delegated Legislation Committee (Draft Openness of Local Government Bodies Regulations 2014) meets, it will vote on the motion “The
Committee has considered the instrument” and ninety minutes will be given to debate it. The Government always votes in favour of these types of motion and as the committee comprises of 8 Conservative MPs, 7 Labour MPs, 1 Lib Dem MP and 1 Democratic Unionist MP such a motion will be agreed.

The Lords Secondary Legislation Scrutiny Committee considered the Draft Openness of Local Government Bodies Regulations 2014 on the 6th May and made these comments on it and the draft Explanatory Memorandum:

“35. In the Explanatory Memorandum (EM) to these draft Regulations, the Department for Communities and Local Government (DCLG) says that they give greater rights to report at open meetings of local government bodies, by filming, photographing, audio-recording or any other means. DCLG comments that local people will be able to film, make audio-recordings and provide written commentaries during a meeting and provide oral commentaries outside the meeting, allowing those who are unable to attend the meeting to follow the proceedings. The Regulations also require a written record of certain decisions made by officers of such bodies.

36. DCLG states that it did not undertake formal consultation on the Regulations, but that they were the subject of an informal soundings exercise with the Local Government Association (LGA), Lawyers in Local Government, the National Association of Local Councils (NALC) and the Society of Local Authority Chief Executives. All but the last-named of these submitted comments, as did a number of other interested organisations, and a member of this House.

37. DCLG’s account of the outcome of the soundings exercise identifies no unequivocal support for the Regulations. For example, the LGA opposed them and commented that “the Government’s approach, as set out in the draft Regulations, appears completely contrary to the principles of Localism and is in fact micro-management of the sector.” While the NALC supported the objective of transparency, it raised concerns (in common with other respondents) that some provisions in the Regulations, such as filming or recording a meeting, and recording and publishing decisions taken by officers, would have significant detrimental, costly and disproportionate effects on local councils.

38. The Department has not been persuaded by these concerns. As is made clear in the EM, it holds to the belief that “localism requires robust local scrutiny and local accountability”, and that “allowing the public to attend and report meetings promotes health democracy and should not be seen as an intrusion [which does not create] burdens on the councils or local government bodies.” We note that much of the EM consists of similar declarations; we would urge the Department to bear in mind that EMs are intended to provide explanation, not exhortation.

39. DCLG proposes to bring the Regulations into force on the day after which they are made. In the EM, the Department refers to Ministerial statements and press notices which have set out the importance of allowing filming and the use of social media in their meetings. While it refers to two specific press notices, we understand that there have been no Ministerial Statements to Parliament about the Regulations. As an instrument subject to affirmative resolution, the Regulations will be debated in the House: this will provide the Department with an opportunity to explain its intentions to Parliament, as well as to the recipients of its press releases.

So, the draft Openness of Local Government Bodies Regulations will probably become law at some point this month, let’s hope it’s sooner rather than later!

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Responses

  1. Paul Wirral council at it again

    Alan

    • I’m not Paul, do you mean Paul Cardin?

      The regulations once they come into effect affect a wide range of public meetings beyond Wirral Council, public meetings of bodies like the Liverpool City Combined Authority, Merseyside Fire Authority, Merseytravel and a few others.

  2. Thanks for your explanation. I have little knowledge of legislation covering councils, but am learning fast. I was one of those removed by the police from the Dysfunctional Keighley Town council last year, so the finalisation of the filming issue is really important to us. Keighley Town council is still under investigation by External Auditors since last year, so filming believe me is vitally important. At Thursday’s meeting the new mayor insisted we could only film under their protocols, which insist on 7 days notice. However, they only give three days notice of agenda’s (often not on their website), so how would you know if you wanted to film an item. Also, the seven day rule is nonsense, because if someone just decides to go to a meeting, perhaps because they have heard of an item that interests them, they might want to film or tweet it, but wouldn’t be allowed under the draconian rules of Keighley Town Council.

    • Thank you for your comment. You may be interested to read my experience of getting told to stop filming yesterday.

      Sadly, the issue of filming public meetings has never been decided one way or the other by the courts. This letter I wrote yesterday should explain the current legal background (at least from my perspective).

      The case of [2013] EWHC 515 (QB) (Thompson v James & Anor [2013] EWHC 515 (QB) (15 March 2013) did touch upon the filming issue. At paragraph 286 of his judgement Mr Justice Tugendhat states:

      “There is a further reason why I should not decide whether the ban on filming was lawful or not. The parties have not put before the court all the material that the court ought to have to decide that issue. It is an important issue of public law, of a kind which might best be determined in an application for judicial review of the Council ‘s decision. Filming of public proceedings in Parliament and the Supreme Court (under certain conditions) has been lawful for some time, and the extension to other kinds of proceedings is widely regarded as in principle desirable.”

      As pointed out however, Mr Justice Tugendhat falls short on deciding on whether a ban on filming public meetings is lawful.

  3. Can anyone shed any light on this type of restriction that our dysfunctional council Keighley, is trying to impose. We already have to sign in for fire regulations, although the councillors don’t they just walk in But not sure if the Policy and Governance Ctte can make us sign an agreement to attend a public meeting

    “2014/149 (PG) ANY OTHER RELEVANT BUSINESS
    To consider at a future meeting a possible document to be signed and agreed by members of the public attending Council or Committee meetings. .A model is available from YLCA and Cllr Ward will locate and bring to the next meeting.”


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