House of Lords agrees to law on filming, tweeting and blogging local Council meetings

House of Lords agree to law on filming, tweeting and blogging local Council meetings

Cllr Harry Smith tells Wirral Council's Pensions Committee that £1 million is a lot of money to write off

A still from a video of Wirral Council’s Pensions Committee meeting which is an example of the sort of filming that a Coalition Government Minister has promised to give the public a right in law to

The penultimate stage of the Local Audit and Accountability Bill was debated in the House of Lords and the amendment on filming, tweeting and blogging from local Council meetings was agreed. Although this (when the Local Audit and Accountability Bill becomes law) won’t place an immediate legal obligation on local Councils it does grant the Secretary of State Eric Pickles the power to bring in legislation in the form of a statutory instrument (or regulations) two months after the Bill becomes law.

A government Minister in the House of Lords, Baroness Stowell of Beeston said that they “intend to work with partners such as the Local Government Association and the National Association of Local Councils on the detail of the regulations”. She also said that “we will carry out a process of consultation on these regulations and ensure that we take account of the points that have been made. We will not lay the regulations until we have completed that consultation. However, we are talking about a matter of months in terms of bringing those regulations forward. We do not want delay on this.” In addition to a promise of new regulations she stated that “alongside the regulations, we intend to produce guidance to cover such matters.”

As the issue of filming local Council meetings is of interest to a number of bloggers (and others) I include the Hansard transcript of the debate below. This information contains Parliamentary information licensed under the Open Parliament Licence v1.0. For ease of reading I have edited out the column references to Hansard which are 21st January 2014 columns 632 to 640 and created links for the legislation referred to.

Motion on Amendment 26

Moved by Baroness Stowell of Beeston

That this House do agree with the Commons in their Amendment 26.

26: After Clause 38, insert the following new Clause—

"Access to local government meetings and documents

(1) The Secretary of State may by regulations make provision for and in connection with allowing persons—

(a) to film, photograph or make sound recordings of proceedings at a meeting of a body to which this section applies, or of a committee or sub-committee of such a body;

(b) to use other means for enabling persons not present at such a meeting to see or hear proceedings at the meeting, as it takes place or later;

(c) to report or provide commentary on the proceedings at such a meeting, orally or in writing, so that the report or commentary is available, as the meeting takes place or later, to persons not present at the meeting.

(2) Regulations under subsection (1) may in particular make provision—

(a) for allowing persons to make available to the public or a section of the public using any medium (including the internet) things produced as a result of activities within that subsection;

(b) about the facilities to be made available by bodies to which the regulations apply to enable persons to carry on such activities;

(d) about the circumstances in which persons may not carry on such activities, including for enabling a person specified in the regulations to prevent them from doing so in the circumstances specified in the regulations.

(3) The Secretary of State may by regulations make provision—

(a) for requiring written records to be kept of decisions that are of a kind specified in the regulations and are taken by an officer of a body to which this section applies,

(b) with respect to the information that is to be included in those written records (including information as to the reasons for any decision);

(c) for requiring any such written records, or any documents connected with the decisions to which they relate, to be supplied or made available to members of the body, to the public or to other persons;

(d) for the creation of offences in respect of any rights or requirements conferred or imposed by the regulations.

(4) The Secretary of State may by regulations provide that any of the following may or must be given or made available by electronic means—

(a) any notice which is required by the Public Bodies (Admission to Meetings) Act 1960, Part 5A of the Local Government Act 1972 (access to meetings and documents of certain authorities etc) or regulations under this section to be given by a body to which this section applies;

(b) any document relating to such a body which is required by that Part or those regulations to be open to inspection.

(5) Regulations under this section may, in particular, amend or repeal any provision of—

(a) the Public Bodies (Admission to Meetings) Act 1960,

(b) Part 5A or section 228 (inspection of documents) of the Local Government Act 1972, or

(6) Subject to subsections (7) and (8), this section applies to—

(a) a district council,

(b) a county council in England,

(d) the London Assembly,

(e) the Common Council of the City of London in its capacity as a local authority or police authority,

(f) the London Fire and Emergency Planning Authority,

(g) Transport for London,

(h) a joint authority established under Part 4 of the Local Government Act 1985,

(i) an economic prosperity board,

(j) a combined authority,

(k) a fire and rescue authority in England constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies,

(l) a National Park Authority for a National Park in England, (m) the Broads Authority,

(n) the Council of the Isles of Scilly,

(o) a parish council, and

(p) a parish meeting.

(7) In its application to subsection (1), subsection (6) is to be read as if it included a reference to an executive of an authority within paragraph (a), (b) or (c) of that subsection.

(8) In its application to subsection (3), subsection (6) is to be read as if the reference in paragraph (d) to the London Assembly were to the Greater London Authority.

(9) References in this section to a committee or sub-committee of a body include any committee or sub-committee of that body to which Part 5A of the Local Government Act 1972 applies or is treated as applying.

(10) References in this section to Part 5A of the Local Government Act 1972 include a reference to that Part as it applies to the London Assembly by virtue of section 58 of the Greater London Authority Act 1999.

(11) In paragraph 4(2) of Schedule 12 to the Local Government Act 1972 (notice of meeting of principal council), for "Three clear days" substitute "Five clear days"."

Baroness Stowell of Beeston: My Lords, in moving the Motion on Amendment 26, I shall speak also to the other amendments in this group.

Noble Lords will be aware that these are new provisions. These amendments insert a new clause into the Bill that would give greater rights to report at local government meetings and to have access to documents. We believe that this is an important extension to reflect greater enthusiasm and appetite among the public not just for transparency but also to have an element of control over the information and the access that they enjoy which allows them to continue discussion and debate beyond being just observers at meetings.

Commons Amendment 26 gives the Secretary of State the power to make regulations that would allow members of the public to report proceedings at public meetings, allowing people to film, audio-record, tweet and blog at a meeting of a local government body. This will allow those who are unable to attend the meeting to follow the proceedings and, as I have just said, perhaps promote discussion about proceedings thereafter. It will also give the public access to documents of local government bodies. These documents may, for instance, include records of decisions taken by officers acting under delegated powers; the reasons for the decisions, details of any alternative options considered and rejected, and any other documents connected with the decisions to which they relate.

The regulations may set out possible conditions to be met before such activities can be carried out. Likewise, they may specify the circumstances where activities such as filming or audio recording might not be permitted. The Government intend to work with partners such as the Local Government Association and the National Association of Local Councils on the detail of the regulations. They will be subject to the affirmative procedure if there is provision in the regulations amending or repealing primary legislation; otherwise the regulations will be subject to the negative procedure.

Local people are currently enjoying more rights under the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 when they attend meetings of a council’s executive and access information relating to decisions made in those meetings. Unfortunately, these same people cannot enjoy the same rights when they attend the public meetings of full council, its committees, sub-committees and joint committees, parish and town councils and other local government bodies. Some councils have used this inconsistent approach to refuse the public access. We are aware of some recent examples of councils ejecting members of the public from meetings for filming or tweeting from those meetings. That is why we have decided to bring forward these amendments now.

Since the 2012 regulations came into force, we are not aware that they have caused any particular problem for local authorities, other than some needing to update their standing orders to reflect the change in access rights by the press and public. We do not believe that this greater access should create additional burdens. However, I am aware that some may be concerned about the possible disruption that filming in council meetings might cause. Therefore, we will consider possible steps that have to be taken by people attending the meeting for the purpose of reporting the proceedings so that activities such as filming or taking photographs might not disturb the good order and conduct of a meeting. As I say, we intend to work with partners to ensure that the regulations and any guidance address this.

We are in a digital age where technology has significantly evolved and we need to acknowledge that it will continue to advance swiftly. With this in mind, we must widely embrace the use of modern communication methods such as filming, tweeting and blogging at public meetings. On top of this, opening up these bodies would help the public to have a better understanding of their local decision-making process and, as I said, potentially encourage them to be more involved in local affairs. I beg to move.

Lord Tope: My Lords, I expect we all welcome the intentions of the amendments: I certainly do. I must confess that my first response when I read about this was a little surprise that they were considered necessary. I am sure the vast majority of authorities of all persuasions are already doing this. It may well be that, in some cases, their standing orders have not been brought up to date, but I am sure that most are doing it very willingly. However, I then reflected on my early days as a councillor, quite a long time ago, when all council and committee meetings were open to the public, as required — if I remember rightly — by a Private Member’s Bill introduced by the then new and young honourable Member for Finchley, Mrs Thatcher. The one committee not open to the public was what was then called the planning committee; it would now probably be the development control committee. This was, arguably, the committee of greatest interest to members of the public but it was the one to which they were not allowed access.

Those days are, fortunately, long gone but it reminded me that we need to ensure we keep up to date with the times. I am sure all noble Lords welcome the good intentions of these amendments. The key will be in the drafting of the regulations. I am not sure why any local authority or council would wish to stop someone tweeting during a meeting or, if they did, how they could implement it without the most draconian measures. That is well and good, but the difficult part will be making regulations that require the greatest openness but do not allow the avoidable disruption of meetings.

I hesitate a little, because a fundamental part of our democracy is the right to be irritating and to annoy. I think the noble Lord, Lord Beecham, is suggesting that I am doing this at the moment. We all know from our local authority experience that there are some people whom everyone agrees are simply a nuisance. It will be quite tricky to balance the regulations to ensure that the person—it is usually an individual rather than a collection — has a right to be a nuisance and be irritating but does not disrupt the good order and procedure of the meeting. I imagine that the decision will be in the hands of whoever is chairing the meeting. They have the right now to have disruptive people ejected, as happens occasionally, and this will, no doubt, still be the case. However it will be quite difficult to draw the balance between allowing the maximum openness and transparency at meetings, which we would all endorse, with not allowing individuals — I stress, individuals — with a cause from unnecessarily and avoidably disrupting proceedings.

We look forward with interest to seeing the regulations. I am delighted that the Minister has made clear that there will be wide consultation with the local government associations, NALC and other bodies in the drawing up of these. We look forward to seeing the result.

The Earl of Lytton: My Lords, I relate to what the noble Lord, Lord Tope, has just said. I have a mental image of the small parish or town council, with its quite limited premises, taking on progressively more functions and finding itself in the centre of some awfully controversial measure. The premises might, quite literally, be crowded out by people with cameras or wanting to record: the sort of thing one sees on television outside the courts of justice when a person of fame—or infamy, as the case may be—has received a decision. The scrum that goes on out there is the sort of thing that slightly worries me, particularly, for the reasons given by the noble Lord, Lord Tope, with development control, which in many instances is highly contentious.

I will not ask the Minister for an answer at this juncture, but could she bear in mind that uniformity of regulations across the whole of local government might be difficult to achieve, for the reasons given by the noble Lord, Lord Tope? There is also a question of how open-ended this public right is. There will clearly be instances — I am sure we have all witnessed meetings of this sort — where it can be thoroughly disruptive and an impediment to the sober and conscientious consideration of matters on the agenda. Perhaps there must be some limitations. Like the noble Lord, Lord Tope, I look forward to seeing the draft regulations in due course. I appreciate what the Minister has said about the process for that: would she perhaps clarify the timescale for it? That would be very helpful, particularly for parish and town councils, a bigger proportion of which may be affected by this measure than principal authorities which, in many cases, already have generous facilities for public access and the recording of proceedings.

Lord Beecham (Lab): My Lords, I occasionally encounter some unfortunate being who has apparently had nothing better to do than watch me on Parliament TV. It is possible that others of your Lordships may have had similar encounters. Oddly enough, although Newcastle City Council — on which both I and the noble Lord, Lord Shipley, have served — has webcast its meetings for many years, nobody has ever claimed to have seen me on those broadcasts. Perhaps that says something about the medium not quite having conveyed the message thus far.

I join my honourable friends in the House of Commons in welcoming these changes. It is fair to say, and was said by the Minister in the debate on this provision in the Commons, that the Opposition Front Bench there were very supportive of the concept. It is welcome that these proposals come here and, as the Minister pointed out, that they include the potential for safeguards. I presume that these will, as she has implied, be negotiated, or at least discussed, with the Local Government Association so as to avoid conduct which might disrupt meetings and to provide clarity about what happens when, for legitimate reasons, the press and public may be excluded. Examples might be if there are matters of commercial confidentiality or confidential personal details to be discussed in certain areas. I might like to suggest, though it may not reach into regulations, that selfies might be prohibited, but that is a matter of taste rather than democracy.

It would also be helpful if, alongside any regulations, the Government gave some information, in guidelines or otherwise, about the risks that may be attendant on people filming, tweeting or otherwise relaying actual events. Although one hopes it would not happen, what is said in council may sometimes stray into the area of defamation and those relaying matters of that sort could find themselves in a difficult situation. Some guidance about the need to be careful would help those who might otherwise run into difficulties. It is not likely to arise in a large number of cases but it is conceivable it might happen. Broadcasting authorities and so on are very alert to that danger. In Parliament it is privilege but that does not apply to local authorities.

I also wonder, although it is not a matter for the Minister or the Department for Communities and Local Government, whether the principle embodied in these amendments, which will eventually be subject to guidelines, might not be extended to some other public bodies. For example, the noble Lord, Lord Shipley, referred to health and well-being boards. It is true that they are technically part of local authorities, but health is generally a matter that clearly engages the interest of a community. Many bodies such as clinical commissioning groups, health trusts and so on are open to the public. A similar regime might be useful there, and perhaps the noble Baroness can take back to ministerial colleagues the thought that this principle — after it has run for a period and people can see how it works — may usefully be extended.

I find some irony in the Government’s general position on this issue. They talk about democracy when, at the same time, they are not only imposing a council tax cap on local authorities which can be exceeded only if there is a referendum, they are also intending to impose a lower cap than would otherwise be the case because some authorities have levied just under the prescribed level for a referendum. The Government seem to be taking an absurd position. Indeed, at least part of the coalition appears increasingly to favour referendums over elections. In this House we will be debating at some length the proposals regarding European referendums. This process was started by Louis Napoleon in the 19th century and has since been extended to various other unsatisfactory regimes.

However, the current proposals are regarded as potentially helping to revive interest in the established local democratic process. That is necessary given—as many of us have remarked during the debates on the Bill—the almost total lack of coverage of local affairs not just by the printed press but by the media generally compared with what used to be the case. If that lack of coverage means that people are unable to read such coverage in their local paper or see it on the local broadcasting media then it would be useful if this information could be disseminated from meetings. I hope that people will take advantage of that opportunity as it can only be for the good of local democracy. We support the amendments.

Baroness Stowell of Beeston: I am grateful to the noble Lord for his and the Opposition’s support for these amendments. I am also grateful to have been reminded by my noble friend Lord Tope that I am following in the proud tradition of my late and noble friend Lady Thatcher in terms of increasing access to public meetings.

As my noble friend Lord Tope pointed out, many local authorities now provide the kind of access and opportunity to local people in the way that we are seeking to require through these measures. He is right, there is extensive use and availability in this area. However, some local authorities are not providing that kind of access. As we think that that is important and the precedent is there in other kinds of public meetings, it is only right to extend such provisions. For example, I am told that Tower Hamlets Council barred a 71 year old resident from filming because it claimed a risk of reputational damage to the authority. Keighley Town Council blocked some residents from filming as it would have amounted to a breach of standing orders. Stamford Town Council placed a ban on journalists tweeting from meetings due to the risk that the journalists would not accurately portray the debate. So there are examples and evidence of inconsistency in approach and we want to address that.

Noble Lords raised important points about risks, and the measures necessary to mitigate those risks, to ensure that proper conduct is able to continue. I re-emphasise that we will carry out a process of consultation on these regulations and ensure that we take account of the points that have been made. We will not lay the regulations until we have completed that consultation. However, we are talking about a matter of months in terms of bringing those regulations forward. We do not want delay on this.

The noble Lord, Lord Beecham, specifically raised concerns about whether guidance will be issued on matters such as defamation in order that members of the public do not inadvertently put themselves at risk. Alongside the regulations, we intend to produce guidance to cover such matters. As the noble Lord will know, there is some precedent in this area because journalists are now allowed to “live tweet” from some public court proceedings.

The noble Lord specifically asked whether this provision may be extended to other public bodies such as health bodies. I will take his point away and raise it with colleagues. We believe that if a public meeting provides access to the public we should ensure that they have the ability to record it appropriately, in the way that I have described.

That leads me to another point that my noble friend Lord Tope and others mentioned regarding the ability to maintain sensitivity and confidentiality during public meetings. Councils and other government bodies will still be able to exclude the public from the part of a meeting in which confidential or exempt sensitive information will be disclosed. The definition of confidential and exempt information is already covered in legislation. There are legislative rules that must be followed when excluding the public from a meeting. For instance, a resolution may be passed to exclude the public from a meeting at which exempt information would be disclosed. Again, measures are already there to inform on how we propose to operate in this area.

I think that I have covered all the points that have been raised. I re-emphasise that we will bring forward regulations and ensure that we consult. I am very much aware of the kind of concerns that have been raised by noble Lords and will ensure that proper account is taken of these issues when the regulations are drafted.

Motion on Amendment 26 agreed.

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Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

I thought it was about time to give a brief update on the filming issue and how the Local Audit and Accountability Bill is progressing through the Houses of Parliament.

On Tuesday it finished its last stages in the House of Commons (third reading and report stage) and is expected to become law around February 2014. Sadly when it becomes law in February 2014 it doesn’t settle the filming issue as section 40 (entitled access to local government meetings and documents) in the Local Audit and Accountability Bill around filming which you can read for yourself on Parliament’s website merely grants the power to the Minister to make further secondary legislation in this area.

Also in its commencement section (49(2)) which you can also also read in the same document on Parliament’s website the section on filming (as well as the more controversial section on local authority publicity) won’t come into effect until two months after the Local Audit and Accountability Bill becomes law (which if it does become law in February 2014 means it’ll be April 2014 at the earliest before there is secondary legislation on the matter).

As nobody really knows what the wording of the secondary legislation will be yet and section forty is open to a number of interpretations there have been some concerns expressed about what form it will take. I think it’s already been mentioned that the Government want to consult with the Local Government Association on this first.

Published this morning were the explanatory notes on the Commons amendments to the Local Audit and Accountability Bill which include at page 13 a statement on “compatibility with the European Convention on Human Rights”.

I will quote from this section here (the quotes are in numbered bold paragraphs with my commentary below them), hopefully it allays some fears people had over what the secondary legislation is about and repeats the article 10 (freedom of expression) arguments I’ve been making to Wirral Council about filming for some time!

60. The amendments to the Bill which would allow residents attending meetings of the full council, its committees and sub-committees to act as citizen journalists potentially engage some rights under the European Convention on Human Rights (“the ECHR”).

This is just a statement of fact, written in the ever careful language of lawyers, in my opinion they don’t “potentially engage”, they do engage.

61. The provisions would enable the Secretary of State to make regulations which are either free-standing or amend the relevant provisions in Part 5A of and Schedule 12 to the Local Government Act 1972, the Public Bodies (Admission to Meetings) Act 1960 and the Greater London Authority Act 1999 and that mirror the following elements of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”):

The use of websites for the publication of information such as agendas, minutes and connected reports;

The ability of the public to attend meetings to act as ‘citizen journalists’ (facilitating the reporting of meetings by individuals on social media); and

Recording the decisions taken by officers.

Basically parts of the laws mentioned could do with being repealed to make the situation on filming clearer for both local Councils and those doing the filming. Otherwise there’ll be (once the secondary legislation is passed) about six different bits of law stating slightly different things about the filming issue which would be a recipe for confusion and misunderstandings (especially as each bit of law can be interpreted in different ways). Two of the acts were written before the Human Rights Act 1998 c.42 came into effect. Had they been drafted after 1998 the clauses about filming would have had to be drafted in such a way to take into account article 10 rights to freedom of expression.

The first bullet point I think refers to the media and bloggers publishing information such as agendas, minutes and reports on their blogs rather than linking to the official version on the website of the organisation they’re reporting on. This is already covered in respect of Cabinet meetings in the 2012 regulations, which also grants qualified privilege to publishers in respect of publication of these documents.

The second bullet point is about widening the definition of media to include those writing and publishing online. The current definition in the legislation of media (apart from Cabinet meetings n the 2012 regulations which already covers new media) covers newspapers, media agencies (those who supply stories to newspapers) and those recording sound or video for news broadcasts (local radio and TV) as well as those classed as programme services under the Broadcasting Act 1990. Curiously that last definition is so broad it covers publishing video footage of Wirral Council meetings online (or any public meeting of a local Council).

62. These changes follow what is already provided for in the 2012 Regulations.

My reading of this is that the secondary legislation resulting from this section of the Local Audit and Accountability Bill (apart from the potential for amending provisions of earlier legislation) will extend the regulations outlined in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”) to all public meetings of local councils, as well as the other bodies specified in the Local Audit and Accountability Bill.

Examples of other bodies referred to in the Local Audit and Accountability Bill would be integrated transport authorities. Locally that would be Merseytravel (which may well be have changed completely and be absorbed into the Merseyside Combined Authority by the time the secondary legislation has effect) and the Merseyside Fire and Rescue Authority.

63. The Bill as amended would also provide that the Secretary of State has powers to ensure that the public can film, blog, or tweet at all meetings of a full council, its committees and sub-committees; meetings of an executive, its committees and sub-committees; meetings of parish and town councils and Greater London Assembly meetings. This is a new proposal which reflects the changes in technology enabling broader access to information and new methods of reporting and recording council meeting proceedings.

Personally I don’t have a mobile phone so I can’t blog or tweet live at a public meeting. If I remember correctly the guidance previously issued by the Rt Hon Eric Pickles MP on filming meetings relied on legislation that technically didn’t cover parish and town councils which caused some issues. I don’t know of any parish or town councils in the Wirral and as far as I know Greater London Assembly meetings are already filmed as I’m sure I’ve previously seen Boris Johnson facing questions as the Mayor of London on the BBC Parliament channel.

64. Articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the ECHR may be engaged in relation to the provisions regarding openness of council meetings. Neither of these rights is absolute and they include in their respective second paragraphs details regarding the basis on which the right may be limited.

65. Article 8 has potential to be engaged but it appears unlikely in these circumstances. The meetings being open to public attendance are unlikely to fall within the definition of “private and family life”. Lord Hope and Lord Nicholls in the case of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 both made clear in their judgements that the first step to consider if the matter falls within the sphere of private and family life. The latter described the approach to take as follows: “the touchstone of private life is whether in respect of the disclosed facts that the person in question had a reasonable expectation of privacy”. The court in HRH Prince of Wales v Associates Newspapers Ltd [2006] EWCA 1776 highlighted that whilst there was a division over the conclusions in Campbell there was no division regarding the relevant approach in law. Given that the council meetings considered by the Bill would be held in public (unless there was a justifiable reason to exclude the public), it is difficult see a sustainable argument that attendees would have a reasonable expectation of privacy so as to engage Article 8.

Article 8 is a red herring really, as pointed out there can’t be an expectation of privacy at a public meeting open to anyone to attend where there could be over a hundred present (if it’s a particularly controversial planning application) who would hear what was said and see what was going on. From what I remember, even Wirral Council’s councillors have never claimed filming can’t happen on privacy grounds.

66. Whilst it is unlikely that the attendees’ Article 8 rights would be engaged, if a successful argument were to be made, paragraph 2 of Article 8 allows for the limitation of these rights. The Article 8 rights of those who are attending the meetings (cf. to those attending and reporting) can arguably be qualified on the basis that the limitation is:

a. in accordance with the law; as prescribed by the Bill and regulations made using the powers it contains.
b. is necessary in a democratic society. This is on the basis that wide public access to meetings and reporting on meetings increases accountability. The level of scrutiny which the public expect is influenced by the availability and ease of using different reporting methods, and this has increased since the advent of social media including blogging, tweeting etc and is further influenced by the ease of access to this technology. There is an expectation now that the public should have the ability to subject their representatives to closer and more direct scrutiny; an expectation that is shared both by members of the public and their representatives.
c. is for the protection of the rights and freedoms of others; namely the Article 10 rights of those reporting the meeting.

As pointed out above, article 8 is a qualified right and the rights of people to report public meetings has to be protected.

67. The provisions which would allow for regulations to be made on the prevention of the public from filming, reporting etc of council meetings may engage Article 10. However, it should be noted that it is envisaged that prevention of filming, reporting etc will largely be in the same circumstances in which the public would also be excluded from the meeting. As such the new provisions regarding prevention of filming, reporting etc would reflect the existing provisions on exclusion, including the common law right to exclude the public from meetings to suppress disorderly conduct. Insofar as there is a limitation on the Article 10 rights of potential attendees, this restriction can be justified on the basis that the prevention of filming, reporting etc and exclusion from meetings provisions are drafted in a manner to ensure those decisions are not arbitrary. For example the existing provisions on exclusion state the grounds on which a council may decide to hold a closed meeting, which include: where confidential or sensitive information is to be disclosed or discussed; or where the public are excluded under the common law right to suppress disorderly conduct. These reasons fall within the exceptions included within paragraph 2 of Article 10. Such reasons would be necessary in a democratic society if by not having the option to exclude public attendance would prevent the council from effectively carrying out its business. Furthermore, the exclusions would be prescribed by law as the justifications for preventing filming will be set out in the regulations and the justifications for exclusion from meetings are set out in primary legislation.

Firstly the issue of the press and public being excluded from a meeting, the suggestion that if the right to film covered the whole meeting meaning that recording equipment could be left behind and record the private part of the meeting is frankly a little ridiculous! However there are people that can stay and observe the private parts of meetings (such as other councillors and officers) that if the secondary legislation was poorly drafted would have a right to film or record these private sessions when the press and public were excluded.

I have no problem (and I don’t think anybody else would) with filming being prevented during parts of the meeting that the press and public are excluded from, however the phrase “largely be in the same circumstances” hints at other reasons to prevent filming which is worrying.

The common law right to suppress disorderly conduct is referred, yet it states “provisions are drafted in a manner to ensure those decisions are not arbitrary”. Last year at a public meeting of Wirral Council’s Sustainable Communities Overview and Scrutiny Committee, a Wirral councillor (Cllr Jerry Williams, Labour) (you can read the minutes for yourself here) went so far as to suggest that filming itself to him is regarded as disorderly conduct (rather embarrassingly six members of the Sustainable Communities Overview and Scrutiny Committee then went on to use a piece of legislation that only applies to Cabinet meetings as a rationale to prevent filming).

An opinion as to what or what isn’t disorderly conduct is (as shown in the previous paragraph) entirely arbitrary and I hope the secondary legislation states explicitly that silently filming a meeting can’t be seen as grounds for exclusion from the meeting under the disorderly conduct provisions already in the legislation.

So repeating somewhat what I said above, in my view the justification of preventing filming by excluding the press and public from the meeting is fine, the issue of preventing abuse of the disorderly conduct provision in legislation to prevent filming needs to be explicitly stated and I can’t see there being any other justifications for preventing filming.

68. Article 11, freedom of assembly and association, should also be considered. The right to freedom of assembly includes participation in public meetings. However, Article 11 is a qualified right which can be restricted. The basis of the restrictions include that is in the interests of national security or public safety, for the prevention of disorder or crime or for the protection of the rights and freedoms of others. As such the position in relation justifying qualification of Article 11 is much the same as it is for Article 10 freedom of expression.

The right of the public to be at public meetings is already in legislation and the fact that Article 11 specifically states “peaceful assembly” means that article 11 isn’t engaged if people engage in disorderly conduct. I presume this is referring to the public and press being excluded from private sessions of meetings.

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House of Lords agree to law on filming, tweeting and blogging local Council meetings

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Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

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